Background checks - New Mexico

Summary of differences between federal and state regulations

Arrest and 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.