['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In New Mexico, an employer/former employer may disclose reference information about employee/former employee job performance, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer discloses information:
- That is knowingly false,
- Intentionally misleading,
- With malicious intent, or
- That violated the former employee’s civil rights.
Blacklisting a former employee in order to prevent or try to prevent that employee from obtaining employment is a crime. However, an employer may provide upon request a report/opinion of a former employee’s performance and qualifications, if accurate and honest.
Arrest record inquiries
Both the EEOC and New Mexico have no laws or regulations specifically prohibiting arrest record inquiries for “private” employers. If an arrest record is not followed by conviction, a “public” employer (except law enforcement agencies) may not use it in relation to an employment application.
However, the EEOC’s Notice N-915-061 says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Both the EEOC and New Mexico have no laws or regulations specifically prohibiting conviction record inquiries for “private” employers.
“Public” employers may refuse to hire or may terminate employment of applicants or employees convicted of the following:
- Felony/Misdemeanor that involves moral turpitude and relates to employment;
- Felony/Misdemeanor that involves moral turpitude and agency investigation determines that rehabilitation is insufficient; and
- Trafficking controlled substances, certain sexual offenses, or child abuse and the person is applying for childcare facility employment.
However, convictions must not be an automatic bar of employment. Employers who base hiring and termination decisions on convictions (in whole or in part) must send the person a written statement with the reasons for the decision. Also, if a misdemeanor conviction does not involve moral turpitude, then public employers may not use the conviction in relation to employment application.
These state requirements are different from the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
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, Chapter 28, Article 2:
- §28-2-3, Employment eligibility determination
- §28-2-4, Power to refuse, renew, suspend or revoke public employment or license
- §28-2-5, Nonapplicability to law enforcement agencies
(Browse to Chapter 28, Article 2.)
Conviction record inquiries
New Mexico Statutes, Chapter 28, Article 2:
- §28-2-3, Employment eligibility determination
- §28-2-4, Power to refuse, renew, suspend or revoke public employment or license
- §28-2-5, Nonapplicability to law enforcement agencies
(Browse to Chapter 28, Article 2.)
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 Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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