New Mexico background check laws for employers

At a glance

The New Mexico rules on each topic, in one line. Federal law applies to every topic.

When you may ask about criminal history

Who it covers: Private employers that use a written or electronic employment application (no size threshold in the text)

In force since: June 14, 2019

A private employer that uses a written or electronic application may not ask about arrest or conviction history on the application. The employer may consider a conviction after reviewing the application and discussing the job with the applicant. The employer may tell the public or the applicant that the law or company policy could disqualify people with certain records from particular jobs. There is no individualized-assessment factor list, no notice duty, and no waiting period beyond the federal FCRA. Remedy: a complaint under the Human Rights Act process (NMSA 28-1-10 to 28-1-13).

Exceptions

• Notifying the public or an applicant that law or policy could disqualify people with certain criminal history from particular positions

NMSA 1978, 28-2-3.1(A) (Laws 2019, ch. 176, SB 96) · NMSA 1978, 28-2-3.1(A) · NMSA 1978, 28-2-3.1(B) · NMSA 1978, 28-2-3.1 (codified; history: Laws 2019, ch. 176, sec. 2) · NMSA 1978, 28-2-5(A) as amended by Laws 2025, ch. 61 (SB 66)

What a background check report may include

Who it covers: Credit bureaus doing business in New Mexico and their subscribers

New Mexico’s credit bureau statute (NMSA 56-3-1 to 56-3-8, 1969) limits what a credit bureau may report: bankruptcies for 14 years; collections, charge-offs, suits and judgments for seven years or the statute of limitations if longer; paid tax liens seven years; arrests and indictments pending trial, or convictions, for seven years from release or parole, and not at all once it is learned that an arrest did not end in conviction or a conviction was fully pardoned; any other data seven years. There is no salary exception. The statute covers ‘credit bureaus’ and defines ‘consumer’ as a person seeking credit, so its reach over pure employment reports is uncertain. A credit bureau that offers personnel reporting must keep that information separate from credit files (56-3-5). Users must certify reports will be used only for credit or bona fide business purposes such as evaluating present or prospective employees (56-3-4).

NMSA 1978, 56-3-6(A)(5) · NMSA 1978, 56-3-6(A)(5) · NMSA 1978, 56-3-6(A)(1) · NMSA 1978, 56-3-1(B) · NMSA 1978, 56-3-4(A)

Sealed and expunged records

Who it covers: All employers (effect of an expungement order)

In force since: January 1, 2020

The Criminal Record Expungement Act (NMSA 29-3A, effective January 1, 2020) is petition-based for most records: one year after a release without conviction, and two to ten years after a conviction depending on the offense class. Once a court orders expungement, the proceedings are treated as if they never occurred and the person may answer that no record exists, except for applications or queries about work with FINRA- or SEC-regulated financial institutions. Cannabis records: for offenses that stopped being crimes under the Cannabis Regulation Act, public records are automatically expunged two years after conviction or arrest (29-3A-8, Laws 2021 special session ch. 5), and pending or past cannabis convictions were dismissed or redesignated by July 1, 2022.

Exceptions

• Arrest or conviction records must still be disclosed for employment with a financial institution regulated by FINRA or the SEC

NMSA 1978, 29-3A-7 (HB 370, 2019, sec. 7) · HB 370 (2019) sec. 4(A) · HB 370 (2019) sec. 9 · NMSA 1978, 29-3A-8 (SB 2, 2021 1st Special Session, sec. 5)

Cannabis use and testing

Who it covers: All private employers

In force since: June 29, 2021

Adult-use cannabis is legal (Cannabis Regulation Act, NMSA 26-2C, effective June 29, 2021). Unless the employer and employee agree otherwise, the Act does not restrict an employer from disciplining for impairment, possession or use at work, does not require an employer to break federal law or lose federal funding, and lets an employer adopt a written zero-tolerance policy under which any amount of THC or THC metabolite on a drug test may lead to discipline or termination. Medical cannabis (Lynn and Erin Compassionate Use Act, NMSA 26-2B-9, 2019): an employer may not take adverse action against an applicant or employee for conduct allowed under the Act, unless doing so would cost the employer a federal monetary or licensing benefit. Employers may still act on use or impairment at work or during work hours, and the protection does not apply to employees the employer deems to hold a safety-sensitive position.

Exceptions

• 26-2C-34: impairment, possession or use at work; federal law or funding conflicts; written zero-tolerance policies; Railway Labor Act employees; collective bargaining agreements
• 26-2B-9: federal monetary or licensing benefit; use or impairment on premises or during work hours; safety-sensitive positions as deemed by the employer

NMSA 1978, 26-2C-34(A) · NMSA 1978, 26-2C-34(A)(3) (Laws 2021 (1st S.S.), ch. 4, sec. 34; HB 2) · NMSA 1978, 26-2C-34(A)(1) · NMSA 1978, 26-2B-9(A) (SB 406, 2019, sec. 11) · NMSA 1978, 26-2B-9(B)(2) · NMSA 1978, 26-2B-3 (safety-sensitive position)

Drug and alcohol testing procedures

No state statute regulates private-employer drug-testing procedures. Cannabis limits are in the cannabis topic.

The state consumer reporting law

Who it covers: Credit bureaus doing business in New Mexico and users of their information

NMSA 56-3-1 to 56-3-8 (Laws 1969, ch. 259; Laws 1971, ch. 278, which added the civil-liability section 56-3-7), an early credit-bureau law. It requires credit bureaus to counsel consumers and disclose file contents on request, to reinvestigate and correct errors, to require user certifications, to keep personnel-report information separate from credit files, and sets the reporting time limits in 56-3-6. It creates civil liability for willful or negligent noncompliance (56-3-7). No extra employer disclosure or authorization form, no investigative-report rule, and no CRA registration. The Credit Report Security Act (56-3A) covers security freezes only.

NMSA 1978, 56-3-5 · NMSA 1978, 56-3-2(B) · NMSA 1978, 56-3-7(A)

Where federal law alone applies

We found no New Mexico rule for private employers on these topics. The FCRA and other federal laws still apply.

• Credit checks
• Salary history

Adverse action notices

Before you reject or act against someone because of a background check report, the FCRA requires a pre-adverse action notice, a wait, and then a final notice. The adverse action letter generator writes both notices and adds the New Mexico requirements where they apply.

The waiting period calculator gives the date under the federal rule.

Paperwork at hire

Besides the federal Form I-9 and W-4, New Mexico sets these for each new hire.

• State withholding. New Mexico has no state withholding certificate. Use the federal W-4; a new hire may file a second copy marked “For New Mexico State Withholding Only” to set different state elections. Form Federal Form W-4
• New hire report. Report each new hire to New Mexico within 20 days. State new hire reporting
• Notices at hire. Paid Sick Leave Notice of Employee Rights (Healthy Workplaces Act).

Build the new hire checklist for New Mexico, with city rules, special cases and a due date for each item.

Sources

• NMSA 1978, 28-2-3.1(A) (Laws 2019, ch. 176, SB 96)
• NMSA 1978, 28-2-3.1(A)
• NMSA 1978, 28-2-3.1 (codified; history: Laws 2019, ch. 176, sec. 2)
• NMSA 1978, 28-2-5(A) as amended by Laws 2025, ch. 61 (SB 66)
• NMSA 1978, 56-3-6(A)(5)
• NMSA 1978, 29-3A-7 (HB 370, 2019, sec. 7)
• NMSA 1978, 29-3A-8 (SB 2, 2021 1st Special Session, sec. 5)
• NMSA 1978, 26-2C-34(A)
• NMSA 1978, 26-2B-9(A) (SB 406, 2019, sec. 11)

Last reviewed October 20, 2026 · General information, not legal advice.

After the hire

Once a background check clears, payroll and onboarding come next. Rippling (paid link) runs payroll, benefits and onboarding from one employee record.