A wave of changes to employment laws will impact businesses in New Mexico. Robust legislative action means big changes at the workplaces in the “Land of Enchantement.”
The changes include limiting what employers can ask about an applicant’s criminal history, leave requirements for caregivers and new wage protections for domestic workers. New Mexico’s governor also signed a hike in the minimum wage – the first for the state in about a decade.
“Ban the Box” is a nationwide movement seeking to increase employment for workers with criminal records. At its core, it seeks to eliminate having to “check the box” on applications that asks if the applicant has ever been convicted of a crime.
New Mexico is the latest state to sign on to the movement for private employers when Gov. Michelle Lujan Grisham signed the bipartisan “Criminal Offender Employment Act” on April 3, 2019. The law prohibits private employers in the state from asking job applicants about their arrest or conviction history on the job application. However, employers may still ask about a job applicant’s criminal record during interviews. The legislation doesn’t prevent employers from making a contingent offer and doesn’t restrict employers from conducting background checks on applicants.
The law notes that “nothing in this section shall prohibit an employer from notifying the public or an applicant that the law or the employer’s policy could disqualify an applicant who has a certain criminal history from employment in particular positions with that employer.”
“Senate Bill 96, a bipartisan piece of legislation that would remove the so-called criminal history ‘box’ from job applications, allows New Mexicans a fair opportunity at employment. It is our responsibility to ensure that we create a pathway for individuals to contribute to our economy and to our communities,” Governor Lujan Grisham stated in the press release touting the bill’s signing.
“The significant language on the ability of employers to ask about criminal convictions during the first interview and to advertise job requirements that include the passing of a criminal background check, where applicable, was suggested by the business community,” attorneys Danny W. Jarrett, Susan M. Corcoran and Richard I. Greenberg noted on Jackson Lewis’ blog.
Government employers in New Mexico have been forbidden from asking about prior criminal history on job applications since 2010. The private sector measure becomes effective on June 14, 2019.
The move means New Mexico is the 12th state, as well as the District of Columbia, to put such a law in place on private sector applications. Thirty-three states and more than 150 cities and counties require ban-the-box or similar policies for public-sector jobs.
A similar bill was vetoed in 2017 by former Gov. Susana Martinez.
Employee background screening — including the use of credit checks, driving records and inquiries into criminal history — is a common aspect of the hiring process. Consumer reports and investigative consumer reports can play an important role in hiring decisions.
However, the use of such information can come at a price. A number of employers have been hit with class action lawsuits under the federal law — the Fair Credit Reporting Act — that imposes requirements on employers who use consumer reports and investigative consumer reports.
But, removing the inquiry from the employment application means that employers will expend time and resources on a job applicant who might have been disqualified early in the hiring process. And, failure to perform a criminal check could subject some employers to claims of negligence.
New Mexico lawmakers also approved legislation forbidding employers from asking applicants about criminal records that have been sealed or expunged. Governor Grisham signed the “Criminal Record Expungement Act” on April 3, 2019. The law allows individuals to have certain arrest or conviction records expunged following a successful court petition. The law becomes effective Jan. 1, 2020.
Offenses that won’t be eligible for expungements include homicides, sex crimes, crimes against children, DWI and embezzlement. In addition, arrests or conviction records must be disclosed in connection with queries over employment with any financial institution regulated by the financial industry regulatory authority or the securities and exchange commission.
The law also says that, when dealing with inquiries over expungements that have been granted, court officials can reply that no such record exists as they are directed by the law’s language to treat the matter as though it never occurred.
While the bill was under consideration in the legislature, KRQE reported that the measure had bipartisan support.
New Mexico also expanded employee leave law to cover caring for family members. The “Caregiver Leave Act and the Public Employee Caregiver Leave Act” requires private employers that provide paid sick leave for employees’ illnesses or injuries to tap into that leave in order to care for a family member.
The law defines an employer as a person who employs one or more employees, so the act impacts businesses with at least one employee that provide paid sick leave. It doesn’t apply to employees whose employers do not provide sick leave. The law defines “family member” as an employee’s “spouse, domestic partner, or (whether by blood, marriage or adoption) a parent, grandparent, great-grandparent, child, foster child, grandchild, great-grandchild, sibling, niece, nephew, aunt, or uncle.”
The statute also does not require private employers to offer paid sick leave. But it prohibits retaliation against employees who request or use caregiver sick leave.
The public sector component of the law requires public schools to allow employees to use accrued sick leave time to care for family members. Family members would include those relatives by virtue of blood, marriage, or legal adoption.
A legislative analysis of the law notes that, while many public schools in New Mexico currently allow employees to take sick leave to care for a family member, some school districts restrict sick leave so that the new measure will allow employees to use sick leave to care for relatives not included in their current policies.
The law is effective June 14, 2019.
New Mexico lawmakers also amended the state’s Human Rights Act to include sexual orientation and gender identity among the classes protected from unlawful discrimination by all employers. Because the bill removed an exemption for small businesses, which was defined as those with 14 or fewer employees.
The bill was signed by the governor on March 28 and becomes effective on June 14, 2019.
In prior years, domestic service workers in private homes were exempt from the state’s minimum wage and overtime requirements. Legislation that amended the New Mexico Minimum Wage Act to remove the exception so that all employers of domestic service workers must pay them in accord with the state’s minimum wage and overtime requirements also goes into effect on June 14, 2019. Gov. Lujan Grisham signed the bill on April 4, 2019.
New Mexico’s minimum wage is scheduled to increase in January 2020. New Mexico Governor Michelle Lujan Grisham signed into law a statewide minimum wage increase on April 1, 2019.
The current minimum wage hasn’t been changed since 2009 and currently sits at $7.50 an hour.
Over 100,000 New Mexicans are expected to benefit from the statewide wage hike, Gov. Grisham’s office said in a press statement. The federal minimum wage is $7.25 an hour.
Employers in New Mexico will have to pay workers at least $9 an hour starting January 1, 2020. The entry-level wage rate will rise to $10.50 in January 2021, to $11.50 in January 2022 and to $12 beginning January 2023.
The law also includes a lower minimum wage of $8.50 per hour for high school students, starting Jan. 1, 2020 as well as escalating annual raises to the minimum wage for so-called “tipped” employees, reaching $3 an hour beginning Jan. 1, 2023.
This article is intended only for informational purposes. It is not a substitute for legal consultation. While we attempt to keep the information covered timely and accurate, laws and regulations are subject to change.