An Employer’s Guide to New Mexico Background Checks

This guide covers what shows up on a New Mexico background check, how far back records go, how long the process takes, and the key laws your screening program needs to account for.

What is a New Mexico background check?

When hunting for the right employee, it’s understandable that you want to check some of their history to ensure that they are the perfect person for the job. That’s why, in New Mexico, background checks are a common component of the hiring process. Depending on the industries that the role falls under will alter what type of background check is best to pursue. 

What shows up on a New Mexico background check?

What a background check consists of largely depends on the type of background check you want to conduct. In addition to this, it’s also vital to remember that federal and state laws will also alter what information is shown in a background check. However, the basic information often remains the same and could include:

• Criminal Record Check - A criminal record check in New Mexico may show charges, filing dates, case dispositions, offense levels (such as felony or misdemeanor), and, in some cases, sentencing information. Only records that are legally reportable and have not been expunged or sealed will generally appear. Importantly, the FCRA does not impose a seven-year limit on reporting criminal convictions; under federal law, convictions may generally be reported indefinitely. New Mexico state law, however, limits the reporting of certain criminal conviction information to seven years, with no salary-based exception. As a result, convictions that fall outside New Mexico’s applicable seven-year reporting period may not appear on a background check, regardless of the position’s salary.
• Credit Check - A credit check is often needed if you want to ensure the reliability of a prospective employee when it comes to handling company finances, or if the role is for a more senior leadership position. A credit check can list things like previous credit history and bankruptcies, but it won't reveal the employee's credit score, and a credit check won't affect the prospective employee's credit score either.
• Education Verification - Education verification can be important in the hiring process for a host of reasons, even if the qualifications aren’t directly tied to the role. However, where the role is more vocational and reliant on diplomas or degrees, it’s understandable that you’d want to verify this information. In an education verification, previous diplomas, degrees, qualifications, and the names of the schools or colleges are listed. 
• Employment Verification - Employment verification is key when it comes to ensuring that you’re hiring the best person for the role. An employment verification will show previous companies that the prospective employee has worked at, job titles, and sometimes role responsibilities. 
• Driving Record Check - A driving record check is essential if you’re hiring for a position that involves driving under your company name. Without ensuring that all the details of the prospective employee are correct, you might be likely to encounter problems further down the road when it comes to insurance if there is an accident. A driving record check should show the status of the prospective employee’s license, traffic violations, accidents, DUI convictions, and points.

How far back can a background check go in New Mexico?

Background check time limits and criminal record usage depend on whether you are looking at what a background screening vendor (CRA) can include in a report, or how an employer can use that information.

1. What Background Screening Companies (CRAs) Can Report

State Reporting Limits (NMSA § 56-3-6): Background check vendors cannot report criminal convictions or non-conviction records (e.g., dismissed charges) older than 7 years. For convictions, the 7-year clock starts from the date of conviction, release, or parole.

Override of Federal Rules: While federal law (the FCRA) allows criminal convictions to be reported indefinitely, New Mexico’s strict 7-year cap applies locally to all positions, regardless of salary.

Non-Criminal Verifications: Employment, education history, and credential verifications are not subject to the 7-year time limit.

2. How Employers Can Ask About & Use Records

"Ban the Box" Restrictions (NMSA § 28-2-3.1): Employers cannot ask about criminal history on an initial job application. Private employers must wait until after an initial interview/review, while public employers must wait until the applicant is named a finalist.

Non-Convictions & Expunged Records: Employers generally cannot base hiring decisions on arrests that did not lead to a conviction, misdemeanor convictions not involving moral turpitude, or expunged/sealed records.

How long do background checks take in New Mexico?

The duration of a background check heavily depends on how thorough the background check is. For example, if you’re only conducting a background check on education, then this will be quicker than if you want information on education and credit history. However, the process can be vastly sped up by enlisting the help of professionals rather than trying to find the information yourself. ScoutLogic’s Scouts achieve a 97%+ verification completion rate - compared to the industry average of ~75% - so your background checks get done faster and more completely.

New Mexico background check laws & requirements

The following is a general overview and does not constitute legal advice.

The FCRA

The FCRA is a key federal law governing how background checks are conducted, protecting prospective employees from unfair discrimination and setting the rules employers must follow. For example, under the FCRA, employers are generally required to obtain written consent before conducting a background check.

Likewise, should you discover information as a result of the background check that means you no longer want to offer the role to the prospective employee, you need to put this to them in writing and give them a chance to respond. Employers are generally required to follow the adverse action process. Doing so protects both employer and candidate and keeps your hiring program compliant.

Additionally, the information that is revealed in a background check might be limited to a 7-year window under the 7-year rule, but this is dependent on salary. For example, if the role’s annual salary is under $75,000, then the 7-year rule applies. However, if the annual salary is over this pay threshold, then the 7-year rule won’t apply, and older information will be shared (unless expunged or meeting other state-wide restrictions). 

Title VII of the Civil Rights Act

The Civil Rights Act is an anti-discrimination act, originally enacted in 1964. It has huge impacts across the US, including how criminal background information should be handled during a hiring process. This means that when employers receive information on someone’s criminal background, they’re encouraged to consider what relevance this information has to the role that they’re applying for to prevent unfair discrimination. 

For example, they might have a petty theft listed that they completed community service for. Then the company needs to determine if it’s fair that the prospective employee is rejected from the role solely based on this. Further to this, it’s advised that employers allow the candidate to explain why their previous convictions aren’t relevant to the role. 

New Mexico limitations on reporting information

One of New Mexico’s state laws, NMSA § 56-3-6, establishes limits on how long certain information may be reported by consumer reporting agencies. However, for bankruptcies, the federal Fair Credit Reporting Act (FCRA) controls the reporting period. Under FCRA § 605, Chapter 7 bankruptcies may generally be reported for up to 10 years, while Chapter 13 bankruptcies may generally be reported for up to 7 years. Although New Mexico’s statute historically referenced a 14-year limit, federal law overrides that provision, and consumer reporting agencies generally follow the federal 10-year maximum for Chapter 7 bankruptcies.

Other types of information may be subject to different reporting periods under New Mexico law. For example, certain tax lien information may be subject to a seven-year reporting period, while other information may have different requirements. New Mexico also restricts the reporting of certain criminal records to seven years from the date of release or parole. However, records that have been pardoned or expunged generally cannot be reported where applicable law prohibits their reporting.

Ban-the-box laws

Ban-the-box laws are popular all over the US, but not every state has to adopt them. However, New Mexico has several rules that prohibit unfair discrimination and laws that offer people with certain criminal convictions a second chance. New Mexico also passed a law in 2019 to ban private employers from asking about criminal convictions in the early stages.

In New Mexico, public employers can’t ask about a prospective employee’s criminal history in the initial application stages, preventing unfair discrimination. Only after applicants are shortlisted for the role can the employers ask about or factor in criminal convictions. 

Social media privacy law

With social media growing more than ever, several states have adopted social media privacy laws; employers in New Mexico cannot ask prospective employees to give passwords to access their social media accounts. They also cannot ask prospective employees to grant any access to their social media profiles in any way. This protects the privacy of employees and prevents unfair discrimination against how or why they might use social media. 

Cannabis conviction expungement law

The Cannabis Regulation Act in 2021 saw the legalization of cannabis, both medicinal and recreational. As a result, New Mexico also passed a law in 2021 that provides the expungement of any cannabis convictions. Under this, any marijuana-related crime is no longer a criminal offense and is generally eligible for expungement under the act. 

This means that where these convictions may have previously appeared on a criminal background check, they can no longer be reported. 

Crime Records Expungement Act (CREA)

Under the CREA, individuals can apply to the court to have their convictions expunged. However, the timeframe from the conviction to appealing depends on the offense. For dismissed criminal cases, completion of pre-trial diversion, and completion of a deferred sentence, individuals have to wait one year. For minor misdemeanors, individuals need to wait 2 years, while those with a fourth-degree felony or misdemeanor need to wait 4 years. Third-degree felonies are a 6-year wait, second-degree is an 8-year wait, and first-degree felonies are a 10-year wait. 

In some other states, there is automatic expungement, but that’s not the case in New Mexico. Only when a petition is filed will the court hold a hearing. Filing for expungement doesn't guarantee it, and it will only be when expungement is granted that those offenses will be omitted from a criminal background check.