NM Employment Law Change Regarding Criminal Past

04/12/2019

The close of the 2019 legislative session brings a significant change to employment law across the state with Governor Michelle Lujan Grisham signing Senate Bill 96 into law, expanding job applicant protections.

Like government employers, private employers are now prohibited from requesting a job applicant's criminal history information on an employment application. This legislation is dubbed “Ban the Box,” signaling to employers that they can no longer include the checkbox asking if the applicant has ever been convicted of a crime.

Private employers may still consider an applicant’s convictions after a review of the application and a discussion of employment, just not on the initial application. Thus, an employer may ask potential employees about their criminal background during the interview process. Also, employers can still conduct pre-employment background checks if that is the company’s practice.

Parallel legislation has been adopted in at least 11 states, with New Mexico being the latest to join the national movement just two years after former Governor Susana Martinez vetoed similar legislation. Ban the Box legislation with respect to state employment has been in effect in New Mexico since 2010.  

The new law amends the Criminal Offender Employment Act (NMSA 28-2-1 et seq.) to read:

"If a private employer uses a written or electronic employment application, the employer shall not make an inquiry regarding an applicant's history of arrest or conviction on the employment application but may take into consideration an applicant's conviction after review of the applicant’s application and upon discussion of employment with the applicant.”

Notably, the bill does not prohibit an employer from notifying applicants that it may disqualify a candidate based on their criminal history.

A person claiming to be aggrieved by an employer may seek recourse under the New Mexico Human Rights Act (NMSA 28-1-1 et seq.) by filing a complaint with the Human Rights Bureau of the New Mexico Department of Workforce Solutions and appealing in the district court upon an unfavorable decision. Under the Human Rights Act, the complainant may be awarded reasonable attorney fees in the court’s discretion. This treats the violation of this Act similar to discrimination based on a protected class.

Private employers in New Mexico should consider updating their employment application and policies to avoid inadvertent discrimination and the possibility of an expensive lawsuit.

New Mexico employers needing assistance with their policies and agreements under the new law may contact employment lawyer Benjamin Thomas at 505-883-2500.