New Mexico Background Check Laws

Under NMSA 1978, § 28-2-3.1 (enacted by 2019 Senate Bill 96), a private employer may not ask about an applicant's arrest or conviction record on an employment application, including a written or electronic application. The employer may take a conviction into consideration after reviewing the application and upon discussing employment with the applicant; the section does not require waiting for an interview to be scheduled or a conditional offer to be made. Public employment is governed separately by the Criminal Offender Employment Act (NMSA 1978, § 28-2-1 et seq.).

Employers must check both federal FCRA requirements and applicable New Mexico rules. The private-employer application rule is separate from public-employment standards. When using consumer reports for employment decisions, follow applicable disclosure, consent and pre-adverse/adverse-action requirements.

New Mexico's application rule for private employers (NMSA 1978, § 28-2-3.1) governs when criminal history may be asked about, not how far back a report may go. Public-employment rules in the Criminal Offender Employment Act (NMSA 1978, § 28-2-1 et seq.) are separate. Under federal FCRA § 605 [15 U.S.C. § 1681c], criminal convictions are excluded from the seven-year limit in § 605(a)(5). Civil suits, civil judgments and arrest records have the § 605(a)(2) seven-year-or-longer-statute-of-limitations rule. For employment at an annual salary equal to or reasonably expected to equal $75,000 or more, § 605(b)(3) excepts the time limits in § 605(a)(1)–(5), not all FCRA restrictions. State law and other applicable protections still require checking.

Under New Mexico law, if a criminal record has been expunged or sealed, it should not be considered by employers in employment decisions. Employers should ensure their background check providers are aware of and comply with these expungement rules.

For public employment and licensing, the Criminal Offender Employment Act (NMSA 1978, § 28-2-1 et seq.) sets separate rules on how a conviction may be considered; those public-sector rules are not the same requirement for private employers. Private employers are covered by the application-question rule in NMSA 1978, § 28-2-3.1. Employers should also review applicable local rules.