On June 14, 2019, an amendment of New Mexico’s “Ban the Box” law went into effect prohibiting private employers from using job applications that contain questions about an applicant’s criminal arrest or conviction history. This seemingly slight change to the application process is meaningful. Revealing a criminal history on an initial job application often results in an applicant’s elimination from consideration. Eliminating this disclosure from the job application gives the applicant the opportunity to be considered for employment based on his or her qualifications before the applicant’s criminal record is checked, making employment more likely. Increasing employment ex-offenders reduces recidivism, supports families and benefits society. Ban the Box initiatives play an important role. Ban the Box laws are already the norm for jobs in the public sector, but states are quickly adopting such laws for the private sector.
New Mexico’s Ban the Box law, known as the Criminal Offender Employment Act (2019 SB 96), has relatively few terms. A private employer is prohibited from inquiring about an applicant’s arrest or conviction history on an initial written or electronic employment application. An employer may take into consideration an applicant’s conviction “after review of the applicant’s application and upon discussion of employment with the applicant.”
In comparison to other states’ Ban the Box laws, New Mexico employers have ample latitude in handling job seekers’ criminal histories. Some of what makes New Mexico’s Ban the Box law different:
- The law does not prohibit an employer from stating in a job ad that the law or the employer’s policy could disqualify an applicant with a certain criminal history from a particular position.
- The law does not prohibit an employer from making pre-employment inquiries into an applicant’s criminal history through other avenues, i.e. public records searches.
- The law does not require the employer to make a conditional offer of employment before conducting a background check or asking questions about an applicant’s criminal history; inquiries can be made from the outset of employment discussions.
- The law does not require an employer to consider specific factors in determining whether an applicant’s criminal record disqualifies them for the position.
- The law does not require an employer to give an applicant an opportunity to explain a criminal record before being eliminated from job consideration.
- The law does not limit how far back criminal records may be considered.
Remedies for violation of the law fall under the New Mexico Human Rights Act. An individual who has experienced discrimination in violation of the law does not have a private right of action but may file a complaint with the New Mexico Human Rights Bureau within 300 days of the alleged violation. The Bureau can be contacted at 1-800-566-9471 (toll-free in New Mexico) or 505-827-6838.
Other states that have Box the Box laws applicable to private employers are:
California (Cal. Govt. Code § 12952), Colorado (Colo. Rev. Stat. § 8-2-130), Connecticut (Conn. Gen. Stat. § 31-51i), Hawaii (Haw. Rev. Stat. § 378-2.5), Illinois (820 ILCS 75/1 et seq.), Massachusetts (Mass. Gen. L. c. 151B § 9, 9½), Minnesota (Minn. Stat. § 364, et seq.), New Jersey (N.J.S.A. § 34:6B-11 et seq.), Oregon (O.R.S. 659A.360), Rhode Island (R.I.G.L. § 28-5-7(7), Vermont (21 V.S.A. § 495j), and Washington (R.C.W. 49.94).