Executive Summary: On April 3, 2019, New Mexico expanded the state’s “Ban the Box” law to include private employers. “Ban the Box” is a nationwide effort to eliminate the checkbox on employment applications inquiring into applicants’ criminal history. Over the last few years, thirty-four states have joined the movement to “Ban the Box.” Among these states, twelve – California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington – as well as the District of Columbia have passed Ban the Box laws for private employers. In a press release, New Mexico Governor Michelle Lujan Grisham said “[i]t is our responsibility to ensure that we create a pathway for individuals to contribute to our economy and to our communities.” This seems to be the consensus among more than 150 cities which have also enacted their own version of Ban the Box laws.
Implications of Removing the Box: Effective June 14, 2019, New Mexico’s “Criminal Offender Employment Act” prohibits private employers from inquiring into applicants’ arrest or conviction history at the preliminary application stage. Under the law, any private employer with four or more employees is prohibited from asking about an applicant’s criminal history on a written or electronic employment application. The amendment does not preclude employers from considering an applicants’ criminal history later on in the hiring process. However, employers must first review the prospect’s application and “discuss” employment with him or her before consideration of the arrest or conviction record.
The amendment does not prevent an employer from notifying the public 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. However, another newly enacted New Mexico law, which takes effect January 1, 2020, permits individuals with certain arrests and convictions (including certain felonies) to petition the court for expungement. An individual who has received an order of expungement generally may deny having an arrest or conviction record in response to an inquiry by an employer, with certain exceptions for employment with a financial institution. Thus, even though employers may inquire about an applicant’s criminal history prior to making a final hiring decision, certain applicants will never be required to disclose their expunged record at any point during the employment process and/or relationship.
Bottom Line: New Mexico employers should review their initial employment application and remove the criminal history “box.” Practically speaking, employers may ask job applicants about their criminal record, but only after an interview-like discussion has occurred. Employers should also keep in mind that even if having a criminal background is an immediate disqualification under the law or the employer’s policy, they cannot use a criminal history question as an initial screening device on an employment application.
If you have any questions regarding the amendment or other labor or employment related issues, please contact the authors of this Alert Jeff Mokotoff, jmokotoff@fordharrison.com, partner in our Atlanta office and Co-Chair of FordHarrison’s Non-Compete, Trade Secrets and Business Litigation practice group or Chandler Armistead, carmistead@fordharrison.com, an associate in our Orlando office and member of our Employment Law practice group. Of course, you may also contact the FordHarrison attorney with whom you usually work.