Ban the Box Criminal Background Screening Law in New Mexico.

State of New Mexico has signed a Ban the Box law that would cover private employers in the state. On April 3, 2019 New Mexico Governor Michelle Lujan Grisham signed into law two bills that would prohibit private employers to ask on the employment application about any previous criminal convictions. The second would allow applicants to petition the court to expunge certain criminal records, that if granted wouldn’t show up on the employment screening report.

Criminal Offender Employment Act

Senate Bill 96 would amend the current “Criminal Offender Employment Act”, which will now include private employers with four or more employees from inquiring about applicants’ previous criminal activity. The new law will go into effect on June 14th, employers may consider the applicants criminal conviction history after careful review of the employment application and communication with the applicant about employment (primary focus should be qualifications they have or lack pertaining to the position be sought).

Screening Requirements

The new law requires employers to wait until after an interview or interview-like discussion has taken place with an applicant to inquire about the applicant’s criminal history. There is an exemption where the employer may be required by either contract or federal mandate to not hire individuals with certain criminal convictions (i.e. working in schools and convicted of any sexual offenses).

New Mexico now joins 11 other states that have passed similar ban the box/fair chance hiring acts laws.

States With Fair Chance Hiring Laws

• California
• Connecticut
• Hawaii
• Illinois
• Massachusetts
• Minnesota
• New Jersey
• Oregon
• Rhode Island
• Vermont
• Washington
• District of Columbia

Criminal Record Expungement Act

The second component of the law and frankly something that other jurisdictions that have a ban the box initiative should implement, is allowing applicants the opportunity to expunge certain previous criminal convictions from their record. Senate Bill 96 has a “Criminal Record Expungement Act”.

Most applicants that are effective in getting conviction records expunged can take the position that the underlying conviction did not occur and, therefore, will not be required to disclose such information to an employer on an employment application or at any time throughout the employment relationship. This new expungement law will go into effect on January 1, 2020.