New Mexico will join the list of states with “ban the box” legislation when a new law takes effect on June 14.
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Since 2010, New Mexico has prohibited state agencies from inquiring about job applicants’ criminal convictions at the earliest stage of the hiring process. The new law makes that ban applicable to private-sector employers.
Although the law prohibits criminal history questions on applications, it allows employers to seek information about arrest records and subsequent criminal proceedings, such as convictions, jail, or prison time, later in the hiring process.
The new law states, “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 applicant.”
The law also allows employers to publicly state or place a notice on employment materials that a certain criminal history disqualifies job applicants from particular positions with the organization. For example, if a trucking company has a strict policy that it will not hire truck drivers who’ve had a DWI conviction within the last five years, it would be allowed to state the restriction on its application. However, it wouldn’t be allowed to ask applicants about their existing DWI arrests or convictions until it was actually discussing potential employment opportunities with the individual.
The new law is tied to the New Mexico Human Rights Act and its grievance policy. An applicant who believes he or she has been discriminated against on the basis of a protected classification or affected by a violation of the ban-the-box law may file a grievance with the New Mexico Human Rights Bureau (HRB). The HRB will then investigate the grievance and attempt to mediate the claim if it finds cause to proceed.
For more information on New Mexico’s ban-the-box law, see the June issue of New Mexico Employment Law Letter.
Barbara J. Koenig is an attorney with Jackson Loman Stanford & Downey, P.C., in Albuquerque, New Mexico. She can be reached at barbara@jacksonlomanlaw.com.