May 19, 2019

May 17, 2019

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New Mexico Adopts Ban-the-Box, Expungement Laws

New Mexico is the latest state to adopt statewide legislation prohibiting private employers from making inquiries into an applicant’s criminal history on the initial employment application. The state also enacted legislation prohibiting employers from asking applicants for information about a criminal record that has been sealed or expunged.

Ban-the-Box Law

Governor Michelle Lujan Grisham signed the “Criminal Offender Employment Act” into law on April 3, 2019. Employers should review their job applications to ensure compliance by the mid-June 2019 effective date.

New Mexico joins a number of other states, such as California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington (as well as the District of Columbia), in addition to numerous localities, to have passed ban-the-box laws for private employers.

Employers still may make criminal background inquiries in New Mexico, but the timing of such inquiries shifts to later in the hiring process after the initial employment application, such as during the interview process or contingent upon an offer.

Additionally, the Criminal Offender Employment Act provides, “Nothing in this section shall prohibit 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.”

The significant language on the ability of employers to ask about criminal convictions during the first interview and to advertise job requirements that include the passing of a criminal background check, where applicable, was suggested by the business community.

Expungement Law

Governor Grisham also signed the “Criminal Record Expungement Act” on April 3, 2019. The new law, which goes into effect on January 1, 2020, allows individuals to have certain arrest or conviction records expunged following a successful court petition. Typically, 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, however, “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.”

Jackson Lewis P.C. © 2019

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About this Author

Danny W. Jarrett, Jackson Lewis, government entities lawyer, Native American tribal organizations attorney
Office Managing Principal

Danny Jarrett is Office Managing Principal of the Albuquerque, New Mexico, office of Jackson Lewis P.C. He is a New Mexico native and has been certified as a specialist in labor and employment law by the New Mexico Supreme Board of Legal Specialization since August of 2008.

Mr. Jarrett’s legal practice focuses on counseling and representing employers, government entities and Native American tribal organizations regarding labor and employment disputes. His experience involves Title VII and Title IX of the Civil Rights Act,...

505-830-8247
Susan M. Corcoran, Jackson Lewis, fair credit reporting lawyer, Labor Policy Attorney
Principal

Susan M. Corcoran is a Principal in the White Plains, New York, office of Jackson Lewis, P.C. Ms. Corcoran is a seasoned employment counselor and litigator and is often thought of as the “go to” person on national workplace law issues for her clients.

She is one of the leaders of the firm’s Background Check Resource Group, and serves as a resource on fair credit reporting act issues, as well as “ban the box” strategies. She taught a graduate employment law class for many years at Manhattanville College and frequently speaks before different groups on a variety of workplace law issues. She had recently served two terms as NYS SHRM Legislative Director, successfully participating in lobbying efforts to overturn New York’s annual WTPA notice requirement.

914-872-6871
Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
Principal

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

212-545-4080