Background checks on potential employees are a routine part of managing employment risk. Properly conducted pre-employment screening provides independent verification of applicant information, and can catch conflicts, gaps, or misrepresentations that might disqualify a seemingly good candidate. Workers and employers in Nevada often have questions about the kinds of information a background check can lawfully explore.
Asking about criminal records in Nevada
Nevada law limits the kind of information employers can get about a potential employee’s criminal background. Without an applicant’s consent a Nevada employer may only access information about convictions and incidents that are currently being handled within the criminal justice system, such as probation or parole.
The state does not provide information about arrests. Although a Nevada employer can ask applicants to volunteer information about arrests, it can be risky to base employment decisions on arrest information alone. By itself, an arrest is not evidence of any wrongdoing. That said, an employer might make a decision based on an arrest if it is recent, relevant to the position, and if the employee seems likely to have committed an offense.
The way employers use criminal records is subject to limitations. The Fair Credit Reporting Act, 15 U.S.C. 1681 et seq., protects applicants from employment decisions based on erroneous records, by requiring employers to inform applicants and employees about the contents of their background checks and whether the checks affected an employment decision. Another source of limitation is Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., which prohibits various forms of employment discrimination. Because of high rates of arrest and incarceration among certain groups, unscrupulous use of criminal background checks can cause an employer to effectively engage in unlawful racial discrimination. The U.S. Equal Employment Opportunity Commission provides guidance to help employers avoid this problem.
Nevada restricts how credit information is used
In general, Nevada employers cannot request credit reports as a condition of employment, or make employment decisions on the basis of an applicant’s or employee’s credit history (NRS 613 et seq.). However, an employer can ask for credit information if it is “reasonably related” to the position in question. The statute provides a list of broad categories of employees for whom a credit check is acceptable, including managers, people who will have responsibility over money or confidential information, law enforcement personnel, and employees of financial or gaming institutions.
Drug testing is permitted in Nevada
Nevada doesn’t restrict an employer’s ability to require drug testing, though employers have a responsibility to apply them uniformly and in a manner that respects employee privacy. Drug testing needs to take account of prescription medications that an employee or applicant takes to treat a disability. Failure to do so could result in a discrimination claim under the Americans with Disabilities Act (ADA).
With the legalization of recreational marijuana in Nevada, employers must decide if they will continue to test for the drug. It’s worth noting that, at least for now, an employee’s use medical marijuana to treat a disability is not protected under the ADA.
GGRM is proud of its long history of representing Las Vegas workers. We’re passionate about protecting our clients’ rights and making sure they get the kind of compensation they deserve when an employer takes unlawful actions. For a free consultation with an attorney, visit our contact page or give us a call at 702-388-4476.