NM: “Ban the Box” Meets Negligent Hiring and Retention

The New Mexico legislature is considering a law that would extend the prohibition on asking job applicants whether they have criminal convictions to the private sector.  Currently, governmental units are prohibited from asking the question at the screening phase.  The goal is to allow people with convictions to more easily reintegrate into society.  The rub, however, is that New Mexico recognizes the torts of negligent hiring and retention.  An employer who hires or retains an employee who commits a tort when the employer knew or should have known of the risk posed by the employee could be liable.  In his column, Joel Jacobsen calls for protections for employers as part of the new law.  Of course, employers can still ask the question in subsequent phases of the hiring process.