New Mexico: Ban the Box and Criminal Record Expungement Act

May 7th, 2019 | Joe Rotondo, Vice President of Compliance, Sterling

On April 3, 2019, Governor Michelle Lujan Grisham signed the “Criminal Offender Employment Act” into law. The New Mexico statewide legislation prohibits private employers from making inquiries into an applicant’s criminal history on the initial employment application, whether it be written or electronic. The state also enacted legislation prohibiting employers from asking applicants for information about a criminal record that has been sealed or expunged.  The law will take effect on July 1, 2019.

• The employer may take into consideration an applicant’s conviction after review of the employment application and upon discussion of employment with the applicant. Employers still may make criminal background inquiries in New Mexico, but the timing of such inquiries need to occur later in the hiring process after the initial employment application, such as during the interview process or contingent upon an offer.
• The Criminal Offender Employment Act provides that an employer is not prevented from stating that the law or the employer’s policy could disqualify an applicant who has a certain criminal history from employment, in particular positions, with that employer.

Expungement Law

Also on April 1, 2019, Governor Grisham signed the “Criminal Record Expungement Act” into law. This legislation allows individuals to have certain arrest or conviction records expunged following a successful court petition. The new law will go into effect on January 1, 2020. Generally, a prospective employee would not be required to disclose criminal record information that has been expunged during the employment process.

The Criminal Record Expungement Act states that “Upon entry of an order to expunge, the proceedings shall be treated as if they never occurred, and officials and the person who received the order to expunge may reply to an inquiry that no record exists with respect to the person; provided that arrest or conviction records shall be disclosed by the person and officials in connection with any application for or query regarding qualification for employment or association with any financial institution regulated by the financial industry regulatory authority or the securities and exchange commission.”

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