New Mexico ban-the-box law: the Criminal Offender Employment Act

New Mexico has two ban-the-box rules, both in the Criminal Offender Employment Act. For private employers, NMSA section 28-2-3.1 bars questions about arrest or conviction history on a written or electronic job application; the employer may consider a conviction after reviewing the application and discussing the job with the applicant. For public employers, section 28-2-3 goes further: no conviction question on the initial application, and convictions may be considered only once the applicant is a finalist. For recruiters, the private rule is narrow and specific to the application form, so the main job is to keep arrest and conviction questions off forms and out of early screening.

The private employer rule: section 28-2-3.1

Section 28-2-3.1 was added by Senate Bill 96 in 2019 (Laws 2019, ch. 176), effective June 14, 2019. Subsection A reads: "If a private employer uses a written or electronic employment application, the employer shall not make an inquiry regarding an applicant's history of arrest or conviction on the employment application but may take into consideration an applicant's conviction after review of the applicant's application and upon discussion of employment with the applicant."

The same subsection adds that nothing in it prohibits an employer "from notifying the public or an applicant 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." Subsection B gives an aggrieved applicant a route to relief under the Human Rights Act.

Three features of the wording matter in practice:

• It is about the application. The prohibition is on inquiries "on the employment application," written or electronic. The statute does not mention phone screens, interviews or online searches.
• Arrests and convictions both. The application may not ask about either. The permission that follows covers considering a conviction, not an arrest.
• The consideration point. A conviction may be considered "after review of the applicant's application and upon discussion of employment with the applicant." The statute does not define "discussion of employment," so whether a short recruiter call qualifies is not settled in the text.

The public employer rule: section 28-2-3

For employment with the state or any of its political subdivisions, section 28-2-3(A), as amended in 2010 and 2021, says the board, department or agency may take a conviction into consideration, but "the conviction shall not operate as an automatic bar." It may not "make an inquiry regarding a conviction on an initial application for employment and shall only take into consideration a conviction after the applicant has been selected as a finalist for the position." Subsection B adds that these records may not be used, distributed or disseminated in connection with an application for any public employment:

1. Records of arrest not followed by a valid conviction.
2. Convictions that have been sealed, dismissed, expunged or pardoned.
3. Juvenile adjudications.
4. Convictions for a crime that is not job-related for the position and consistent with business necessity.

Section 28-2-4 lets a public agency refuse employment for a felony conviction that directly relates to the job, and for certain listed offenses in teaching and child care, and requires the reasons to be stated in writing when the decision rests on those convictions. Under section 28-2-5, the Act does not apply to law enforcement agencies.

What this means for private recruiters

The public employer rules are stricter, but they bind only state and local government. A private client is held to section 28-2-3.1, which governs the application form. That does not make early questions safe: Title VII and the EEOC's guidance on arrest and conviction records still apply to private employers, and arrests in particular are a poor basis for any decision. The simple approach for a New Mexico desk is to keep criminal history off the application and the recruiter screen, and leave it to the client's process after it has reviewed the application and talked with the candidate about the job.

What is allowed at each stage

Individualized assessment and notices

Section 28-2-3.1 does not require an individualized assessment, a preliminary notice or a response period for private employers. The public side requires that a conviction not be an automatic bar, that non-job-related convictions not be used, and written reasons when a decision rests on the convictions listed in 28-2-4. For private employers, the FCRA notices and the EEOC's factors (the nature and gravity of the offense, the time elapsed and the nature of the job) are the working framework.

Staffing agencies and recruiters

Section 28-2-3.1 speaks of "a private employer" and does not define the term or mention agents or employment agencies. An agency is a private employer for its own temporary workers, so its own application must comply. When it collects applications for a client, the cautious view is that the client's form rules apply to the forms the agency uses on its behalf. Agree at intake that no arrest or conviction question goes on any application.

Penalties and enforcement

Section 28-2-3.1(B) says an aggrieved applicant "may seek relief under the Human Rights Act pursuant to the process set out in Sections 28-1-10 through 28-1-13 NMSA 1978." That process begins with the Human Rights Bureau of the New Mexico Department of Workforce Solutions, which says a charge must be filed within 300 days of the last alleged discriminatory act. The section sets no fixed fine, and we have not listed remedy amounts.

How it fits with FCRA adverse action

Once the employer may consider a conviction and orders a check through a screening company, the FCRA steps apply: a stand-alone disclosure and written authorization, a pre-adverse action notice with a copy of the report and the summary of rights, a reasonable wait, and the final adverse action notice. See the FCRA background check process and background check notification emails.

A script for New Mexico screens

Candidate volunteers an arrest: "Thanks for telling me. That isn't something I ask about or note. Let's keep going with the role."

Candidate asks why the application had no record question: "New Mexico doesn't allow private employers to ask on the application. If the employer looks at background, that comes later in its process."

Client wants a "convictions" checkbox on the online form: "New Mexico bars that on written and electronic applications. You can say in the posting that the law or your policy may disqualify certain records for this role, and discuss it with candidates later."

A New Mexico checklist for recruiting desks

1. Identify whether the client is private (28-2-3.1) or a state or local public employer (28-2-3), and whether it is a law enforcement agency.
2. Remove arrest and conviction questions from written and electronic applications, including ATS knockout questions.
3. If the client wants applicants warned, use a neutral notice that the law or policy may disqualify certain records for the position.
4. Keep criminal history out of recruiter screens and submittals. See what not to write in interview notes.
5. For public roles, hold any conviction review until the finalist stage and never use the records listed in 28-2-3(B).
6. For other states, see ban-the-box laws and interview questions and neighboring Colorado.