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Summary of differences between federal and state regulations
Arrest & conviction record inquiries
Applies to public employers.
Criminal Offender Employment Act (N.M. Stat. §28-2-3) Public employers may not make inquiries regarding convictions on initial employment applications. Convictions may be taken into consideration only after an applicant has been selected as a finalist for a position and may not operate as an automatic bar to employment. If an applicant is denied employment on grounds of a conviction, the employer must state in writing the reason for the decision. Criminal records involving arrests not followed by valid convictions and misdemeanor convictions not involving “moral turpitude” may not be used in connection with an application for any public employment. The law also outlines parameters for a presumption of rehabilitation for convicted offenders, which must be considered. The law does not apply to law enforcement agencies.
Applies to private employers
The Criminal Offender Employment Act, effective April 3, 2019, prohibits private employers from inquiring about an applicant’s criminal history prior to a “discussion of employment” with an applicant. The law strictly prohibits employers from asking about applicants’ criminal backgrounds on initial employment applications (written or electronic).
State
Contact
Employer immunity from disclosure claims
New Mexico Department of Labor
New Mexico Department of Corrections
Arrest record inquiries
New Mexico Human Rights Division
Conviction record inquiries
New Mexico Human Rights Division
Regulations
Employer immunity from disclosure claims
New Mexico Statutes, §50-12-1, Employer immunity from liability for references on former employee
New Mexico Statutes, §30-13-3 Blacklisting
Arrest record inquiries
New Mexico Statutes, §28-2-3, Employment eligibility determination
New Mexico Statutes, §28-2-4, Power to refuse, renew, suspend or revoke public employment or license
New Mexico Statutes, §28-2-5, Nonapplicability to law enforcement agencies
Conviction record inquiries
New Mexico Statutes, §28-2-3, Employment eligibility determination
New Mexico Statutes, §28-2-4, Power to refuse, renew, suspend or revoke public employment or license
New Mexico Statutes, §28-2-5, Nonapplicability to law enforcement agencies
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.
Conviction record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.