Most states now have statutes to protect individuals with criminal records from unfair discrimination in employment, commonly called “ban the box” statutes, as in banning the check box requiring a job applicant to state whether they have ever been convicted of a crime.
Specific requirements vary by state, but it is common for states to prohibit inquires about arrest or conviction records on an initial job application and then to allow a somewhat nuanced inquiry after an application has been reviewed and the applicant interviewed. These statutes are often coupled with statutes that provide procedures for criminal records to be expunged if an offender meets certain requirements.
For example, in New Mexico, the Criminal Offender Employment Act, NMSA § 28-2-1 et al., as amended in 2019, prohibits private employers from asking an about applicant’s history of arrest and conviction on a written or electronic employment application. After an application is reviewed and a discussion or interview is held with the job candidate, the employer may then take the candidate’s conviction record into consideration. Private employers may also notify the public of any policies that may disqualify applicants with a certain criminal history. When taking a conviction record into consideration, employers are encouraged as a practical matter to consider the type of conviction and the length of time that has elapsed, rather than to simply disqualify all applicants with a record of a criminal conviction. Enforceability of this Act is provided under processes defined for the New Mexico Human Rights Act, just like other forms of alleged employment discrimination.
New Mexico’s Criminal Record Expungement Act, which was effective January 1, 2020, further helps applicants by allowing eligible individuals to petition a court for expungement of certain arrest and/or conviction records. Individuals who have successfully expunged convictions do not need to disclose them to an employer. If you are wondering whether you qualify for expungement, take our free, anonymous expungement qualification questionnaire. It only takes 5 minutes or less.
In addition to variations by state, there may variations by municipality, or by public versus private employment, or by federal regulatory requirements or security clearances, or by the requirements of certain occupational licenses. If you are a private employer setting up hiring procedures, it makes sense to get legal advice on how to balance compliance with applicable laws with the need for legitimate background checks to protect your employees and your business.
Law 4 Small Business (L4SB). A Slingshot company. A little law now can save a lot later.
