New Mexico Employment Screening Overview
New Mexico has moderate employment screening regulations, including ban-the-box rules for both public and private employers that delay criminal history inquiries until after initial application review, plus medical cannabis employment protections under NMSA Section 26-2B-9.
Employers should also be aware of specific expungement rules affecting what records can be considered, while federal requirements and local ordinances may impose additional obligations. No state-specific restrictions on employer credit checks exist beyond federal FCRA compliance requirements.
What's Permitted
- Criminal history inquiries permitted after initial application review for private employers
- Credit checks generally allowed for employment purposes (no state-specific restrictions; federal FCRA applies)
- Drug testing generally permitted for private employers; medical cannabis patients have limited off-duty use protections under NMSA 26-2B-9
- E-Verify voluntary for most employers, mandatory only for federal contractors
What's Prohibited
- Asking about criminal history on initial employment applications (public and private employers)
- Using arrest records not followed by conviction in hiring decisions
- Failing to follow FCRA disclosure, authorization, and adverse action procedures when using credit reports for employment purposes
- Adverse employment action against qualified medical cannabis patients solely for lawful off-duty use (NMSA Section 26-2B-9)
Ban the Box Laws
StatewideStatus Summary
NM bans criminal-history questions on initial applications; public inquiries after finalists, private (written/electronic apps) after review/discussion; law enforcement exempt. Enforced by Human Rights Bureau. See Criminal Offender Employment Act (§§28‑2‑3, 28‑2‑3.1, 28‑2‑5): https://www.nmlegis.gov/handouts/CCJ%20111224%20It... https://www.dws.state.nm.us/Human-Rights-Informati...
Key Requirements
Criminal Offender Employment Act — Public Employers (§28-2-3)
Public employer ban-the-box rules:
- No conviction question on initial application
- Consider convictions only for finalists
- Convictions not automatic employment bar
- Exclude arrests, sealed, juvenile records
- Job-relatedness and business necessity required
Sources: https://www.nmlegis.gov/handouts/CCJ%20111224%20It... https://www.dws.state.nm.us/Human-Rights-Informati...
Criminal Offender Employment Act — Private Employers (§28-2-3.1)
Private employer ban-the-box rules:
- No arrest/conviction question on applications
- Applies to written and electronic applications
- May consider convictions after application review
- May inquire during interview or discussion
- Employers may publicize disqualifying convictions
Sources: https://www.nmlegis.gov/Sessions/19%20Regular/Amen... https://www.dws.state.nm.us/Human-Rights-Informati...
Consumer Reporting & Reporting Limits (§56-3-6 / FCRA)
Background check reporting limits and rules:
- Seven-year conviction reporting limitation
- Expunged/pardoned convictions not reportable
- Arrests not leading to conviction excluded
- FCRA and state notices required
Sources: https://www.dws.state.nm.us/Portals/0/SB66-631_202... https://www.dws.state.nm.us/Human-Rights-Informati...
Enforcement & Remedies (Human Rights Act)
Enforcement and complaint procedures:
- Human Rights Bureau handles complaints
- 300-day filing deadline for complaints
- Conciliation, investigation, possible damages/fees
- Appeal to district court available
Sources: https://www.dws.state.nm.us/Human-Rights-Informati... https://www.nmlegis.gov/handouts/CJRS%20090420%20I...
Exemptions and Special Rules
Exemptions and related provisions:
- Law enforcement agencies exempt
- Licensing boards may deny for related crimes
- Three-year rehabilitation presumption applies
- Cannabis convictions subject to expungement
Sources: https://www.nmlegis.gov/handouts/CJRS%20090420%20I... https://www.dws.state.nm.us/Human-Rights-Informati...
Ban the Box Best Practices for New Mexico Employers
- Remove conviction/arrest questions from written and electronic applications
- Delay criminal-history inquiries until after application review/interview
- Use individualized, job-related business necessity assessments
- Follow FCRA pre-adverse and final adverse action procedures
- Train staff, document policies, and consistently apply procedures
Salary History Ban
NoNew Mexico — No Statewide Salary History Ban
State law status summary:
- No statewide prohibition on salary inquiries.
- Employers may ask prior pay.
- Applies to private and public employers.
- Subject to federal equal pay law.
- No state penalties for inquiries.
Sources: https://www.dws.state.nm.us/Human-Rights-Informati... https://www.nmlegis.gov/
Fair Pay for Women Act (NMSA 1978, Ch. 28, §24)
Act summary:
- Prohibits sex-based wage discrimination.
- Requires equal pay for similar work.
- Allows pay differences for seniority, merit.
- Employers must document legitimate reasons.
- Protects against retaliation for wage inquiries.
Source: https://www.dws.state.nm.us/Human-Rights-Informati...
New Mexico Human Rights Act (NMSA 1978)
Anti-discrimination framework:
- Prohibits discrimination across protected classes.
- Enforced by Human Rights Bureau.
- Covers pay-discrimination complaints.
- Allows filing charges for unequal pay.
- Works with EEOC on dual filings.
Sources: https://www.dws.state.nm.us/Human-Rights-Informati... https://www.dws.state.nm.us/Filing-a-Charge-of-Dis...
Wage Payment Act (NMSA 1978, Ch. 50, Art. 4)
Wage payment obligations:
- Requires itemized wage statements each period.
- Mandates semimonthly or monthly pay.
- Requires advance notice for pay reductions.
- Does not restrict salary history inquiries.
Source: https://www.dws.state.nm.us/en-us/Labor-Relations/...
Federal Equal Pay Act (Equal Pay Act of 1963)
Federal overlay on pay decisions:
- Prohibits wage discrimination by sex.
- Applies regardless of salary-history inquiries.
- Enforced by EEOC and courts.
- Affects multi-state employer policies.
Source: https://www.eeoc.gov/best-practices-private-sector...
Albuquerque Gender Pay Equity Initiative
City contractor requirements:
- Requires contractors to report pay data.
- Applies to entities bidding city contracts.
- No ban on salary-history questions.
- Zero-gap contractors get scoring preference.
Source: https://www.cabq.gov/humanresources/classification...
Salary History Best Practices for New Mexico Employers
- No statewide ban: salary history inquiries generally lawful.
- Comply with Fair Pay for Women Act, Human Rights Act.
- Document legitimate, non-discriminatory reasons for pay differences.
- Albuquerque contractors: complete required gender pay equity reporting.
- Consider uniform policies when operating in restrictive jurisdictions.
Consumer Credit Checks
NoNo state-specific employment credit check ban enacted. SB 145 (2015) was proposed but not signed into law. FCRA governs; N.M. Stat. Section 56-3-6 limits reporting timeframes. Sources: FCRA (https://www.consumer.ftc.gov/sites/default/files/a...
Key Requirements
Federal Fair Credit Reporting Act (FCRA)
Federal consent, reporting, and adverse-action rules:
- Written consent required before credit reports
- Seven-year limit for most adverse information
- Pre-adverse-action disclosure and rights summary
- Final adverse-action notice with agency details
Sources: FTC FCRA guide -- https://www.consumer.ftc.gov/sites/default/files/a... ; CFPB background checks overview -- https://www.consumerfinance.gov/about-us/blog/appl...
N.M. Stat. Section 56-3-6 (Credit bureau reporting limits)
State reporting timeframes and deletion duties:
- Bankruptcies reportable up to fourteen years
- Collections and judgments generally seven years
- Criminal convictions seven years from release/parole
- Bureaus must delete unverified derogatory items
Note on SB 145 (2015)
SB 145, the proposed Prospective Employee Credit Information Privacy Act, was introduced in the 2015 legislative session but was NOT enacted into law. New Mexico does not have a state-specific employment credit check restriction.
Credit Check Best Practices for New Mexico Employers
- Follow FCRA: obtain written consent before credit reports.
- Provide FCRA pre-adverse and final adverse action notices.
- Adhere to NM credit-bureau reporting time limits (Section 56-3-6).
- New Mexico has NOT enacted a state-specific credit check ban (SB 145 was not enacted).
- Only use credit information when demonstrably job-related.
Marijuana Protection
Medicinal Marijuana
Employers generally may not take adverse action solely for lawful off-duty medical cannabis use by qualified patients under NMSA § 26-2B-9. Employers may still prohibit use/impairment at work and act for safety or federal-benefit compliance.
Recreational Marijuana
New Mexico has no general private-employer marijuana testing statute; employers retain broad discretion, subject to applicable federal law and non-discrimination rules. Post-accident testing may affect workers’ compensation under NMSA § 52-1-12.1.
Drug Testing Regulations
Publish-safe summary: New Mexico has no comprehensive private‑employer drug‑testing statute; state employees follow 1.7.8 NMAC; workers' comp §52‑1‑12.1 and 11.4.3 NMAC govern post‑accident testing; medical‑cannabis protections at §26‑2B‑9; HB230 (2025) did not pass.
Permitted Testing Types
Pre-Employment
Allowed for private employers; required for safety‑sensitive state positions.
Random Testing
Generally allowed for private employers; required for state safety‑sensitive.
Reasonable Suspicion
Allowed when objective contemporaneous observations justify testing; follow rules.
Post Accident
Allowed; workers'‑comp rules govern timing, cutoffs, and benefit consequences.
Workers' Compensation Discount
Workers' compensation benefits may be reduced when drug or alcohol intoxication contributes to the workplace injury; denial if sole cause.
Employers must maintain a compliant written drug-and-alcohol policy; post-accident alcohol testing within eight hours, drug testing within thirty-two hours.
Best Practices
- Maintain written, consistently enforced drug-testing policy.
- Use SAMHSA/CAP-certified labs and medical review officers.
- Base cannabis actions on observed impairment, not metabolites.
- Follow 1.7.8 NMAC rules for state employees.
- Adopt workers' compensation-compliant written testing policy.
Clean Slate Laws
NoNM: Petition‑based Criminal Record Expungement Act (eff. Jan 1, 2020) with cannabis automatic expungement (eff. June 29, 2021); waiting periods 1–10 years by offense; ban‑the‑box (eff. July 1, 2019); exclusions; enforcement via Human Rights Bureau. https://www.nmlegis.gov/Sessions/22%20Regular/fina... https://www.dws.state.nm.us/Human-Rights-Informati...
E-Verify Requirements
VoluntaryWho Must Use E-Verify
Private Employers [Immigration Reform and Control Act (IRCA) — Form I‑9]
No New Mexico E‑Verify mandate; private employers must complete federal Form I‑9. E‑Verify is voluntary absent a federal contract. EMNRD I‑9 guidance
Federal Contractors [Executive Order 12989; FAR 52.222‑54]
Federal contractors on covered contracts must enroll in E‑Verify and verify employees per EO 12989 and FAR 52.222‑54; timelines and MOU compliance apply. FAR 52.222‑54
Any other relevant groups [New Mexico Human Rights Act (NMHRA); Albuquerque procurement ordinances; municipal resolutions]
State/local entities and contractors performing federally funded work must follow federal E‑Verify clauses; NMHRA and local ordinances restrict discriminatory verification practices. Albuquerque procurement terms Santa Fe resolution
Background Check Regulations
Federal FCRA requirements govern employment consumer reports, requiring disclosures, consent, and adverse‑action procedures New Mexico’s Criminal Offender Employment Act adds state limits (e.g., no criminal-history questions on initial applications), so employers must follow both federal and state rules
FCRA Compliance Process
Disclosure & Authorization
Provide clear, standalone written disclosure that a background check will be conducted. Obtain separate written authorization from the applicant before ordering the report.
Obtain Background Report
Order the background check from a Consumer Reporting Agency (CRA). Ensure the CRA is FCRA-compliant and provides accurate, up-to-date information.
Pre-Adverse Action Notice
If considering denying employment based on the report, provide the applicant with:
- Copy of the background report
- Copy of "A Summary of Your Rights Under the FCRA"
- Reasonable time to respond (typically 5 business days)
Adverse Action Notice
If final decision is made to deny employment, provide written notice including:
- Name, address, and phone number of the CRA
- Statement that the CRA did not make the decision
- Notice of right to dispute report accuracy
- Notice of right to request additional free copy within 60 days