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New Mexico Background Check Laws

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New Mexico Employment Screening Laws

Employee Background Checks and Drug Screening Trends White Paper

Employers that are either located in New Mexico or hiring New Mexico residents must abide by the Federal FCRA, and applicable New Mexico state employment laws.

This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with New Mexico state laws. This page also contains steps an end-user must take to stay in compliance with New Mexico state laws.

Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.

The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.

For more detailed information on New Mexico state laws, please consult your legal counsel.

Employment Background Check Laws In New Mexico:

New Mexico Statutes 28-2-3: Employment eligibility determination.

Info Cubic Ninja's summary

Public employers may not have questions regarding criminal history on their employment applications or in the initial stage of employment application process. Inquiries into criminal history may only be conducted after an applicant has been selected as a finalist for the position.

A. Subject to the provisions of Subsection B of this section and Sections 28-2-4 and 28-2-5 NMSA 1978, in determining eligibility for employment with the state or any of its political subdivisions or for a license, permit, certificate or other authority to engage in any regulated trade, business or profession, the board or other department or agency having jurisdiction may take into consideration a conviction, but the conviction shall not operate as an automatic bar to obtaining public employment or license or other authority to practice the trade, business or profession. A board, department or agency of the state or any of its political subdivisions shall not make an inquiry regarding a conviction on an initial application for employment and shall only take into consideration a conviction after the applicant has been selected as a finalist for the position.

B. The following criminal records shall not be used, distributed or disseminated in connection with an application for any public employment, license or other authority:

(1) records of arrest not followed by a valid conviction; and

(2) misdemeanor convictions not involving moral turpitude.

New Mexico Statutes 50-4-34: Request for access to social networking account prohibited.

Info Cubic Ninja's summary

An employer may not request or require an applicant to provide a password in order to gain access to the applicant’s account or profile on a social networking web site. Employers may not demand access in any manner to an applicant’s account or profile on a social networking web site.

A. It is unlawful for an employer to request or require a prospective employee to provide a password in order to gain access to the prospective employee’s account or profile on a social networking web site or to demand access in any manner to a prospective employee’s account or profile on a social networking web site.

B. Nothing in this section shall limit an employer’s right to:

(1) have policies regarding work place internet use, social networking site use and electronic mail use; and

(2) monitor usage of the employer’s electronic equipment and the employer’s electronic mail without requesting or requiring a prospective employee to provide a password in order to gain access to the prospective employee’s account or profile on a social networking web site.

C. Nothing in this section shall prohibit an employer from obtaining information about a prospective employee that is in the public domain.

D. Nothing in this section shall apply to a federal, state or local law enforcement agency. Nothing in this section shall prohibit federal, state or local government agencies or departments from conducting background checks as required by law.

E. As used in this section, “social networking web site” means an internet-based service that allows individuals to:

(1) construct a public or semi-public profile within a bounded system created by the service;

(2) create a list of other users with whom they share a connection within the system; and

(3) view and navigate their list of connections and those made by others within the system.

Fair Credit Reporting Act (FCRA):

The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.

Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.

The purpose of the FCRA is to help protect employers, employees, and potential job candidates.

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

New Mexico Statutes 28-2-3: Employment eligibility determination.

Public employers may not have questions regarding criminal history on their employment applications or in the initial stage of employment application process. Inquiries into criminal history may only be conducted after an applicant has been selected as a finalist for the position.


Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

Court Fees:

County: Court Fee: County: Court Fee: County: Court Fee:
Bernalillo $0.00 Catron $0.00 Chaves $0.00
Cibola $0.00 Colfax $0.00 Curry $0.00
De Baca $0.00 Dona Ana $0.00 Eddy $0.00
Grant $0.00 Guadalupe $0.00 Harding $0.00
Hidalgo $0.00 Lea $0.00 Lincoln $0.00
Los Alamos $0.00 Luna $0.00 Mckinley $0.00
Mora $0.00 Otero $0.00 Quay $0.00
Rio Arriba $0.00 Roosevelt $0.00 San Juan $0.00
San Miguel $0.00 Sandoval $0.00 Santa Fe $0.00
Sierra $0.00 Socorro $0.00 Taos $0.00
Torrance $0.00 Union $0.00 Valencia $0.00

Summary of Rights:

New Mexico Consumers Have the Right to Obtain Security Freeze or Submit a Declaration of Removal

You may obtain a security freeze on your credit report to protect your privacy and ensure that credit is not granted in your name without your knowledge. You may submit a declaration of removal to remove information placed in your credit report as a result of being a victim of identity theft. You have a right to place a security freeze on your credit report pursuant to the Credit Report Security Act.

The security freeze will prohibit a consumer reporting agency from releasing any information in your credit report without your express authorization or approval.

The security freeze is designed to prevent credit, loans and services from being approved in your name without your consent. When you place a security freeze on your credit report, you will be provided with a personal identification number, password or similar device to use if you choose to remove the freeze on your credit report or to temporarily authorize the release of your credit report to a specific party or parties or for a specific period of time after the freeze is in place. To remove the freeze or to provide authorization for the temporary release of your credit report, you must contact the consumer reporting agency and provide all of the following:

  1. unique personal identification number, password or similar device provided by the consumer reporting agency;
  2. proper identification to verify your identity;
  3. information regarding the third party or parties who are to receive the credit report or the period of time for which the credit report may be released to users of the credit report; and
  4. payment of a fee, if applicable.

A consumer reporting agency that receives a request from a consumer to lift temporarily a freeze on a credit report shall comply with the request no later than three business days after receiving the request. As of
September 1, 2008, a consumer reporting agency shall comply with the request within fifteen minutes of receiving the request by a secure electronic method or by telephone.

A security freeze does not apply in all circumstances, such as where you have an existing account relationship and a copy of your credit report is requested by your existing creditor or its agents for certain types of account review, collection, fraud control or similar activities; for use in setting or adjusting an insurance rate or claim or insurance underwriting; for certain governmental purposes; and for purposes of rescreening as defined in the federal Fair Credit Reporting Act.

If you are actively seeking a new credit, loan, utility, telephone or insurance account, you should understand that the procedures involved in lifting a security freeze may slow your own applications for credit. You should plan ahead and lift a freeze, either completely if you are shopping around or specifically for a certain creditor, with enough advance notice before you apply for new credit for the lifting to take effect. You should contact a consumer reporting agency and request it to lift the freeze at least three business days before applying. As of September 1, 2008, if you contact a consumer reporting agency by a secure electronic method or by telephone, the consumer reporting agency should lift the freeze within fifteen minutes. You have a right to bring a civil action against a consumer reporting agency that violates your rights under the Fair Credit Reporting and Identity Security Act."

Court Cases:

KEY COURT DECISIONS
Court Case Issue Outcome Employer Limitation/ Action

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