The Fair Credit Reporting Act (FCRA) under 15 U.S.C. § 1681 provides rules that employers throughout the U.S. must abide by when requesting background information (including credit reports and criminal records) on prospective employees. And as of 2015, Nevada background checks may now include conviction information that is more than seven (7) years old. (NRS 598C.150; Nevada Senate Bill 209 (2015))
Nevada employer obligations under FCRA
Employers are not allowed to disqualify potential employees based on their background information unless either:
- the law requires them to; or
- the employer has reason to believe the applicant has broken the law; or
- the consumer report is substantially related to the job the potential employee is applying for
Background information is substantially related to a particular job, in turn, if the job involves either:
- handling of, responsibility for, or access to assets such as cash, financial information, or corporate credit or debit cards;
- handling of, responsibility for, or access to another person’s personal information;
- having access to confidential information (such as trade secrets or other proprietary information);
- managing or supervising other people;
- having direct law enforcement authority in a state or local law enforcement agency;
- employment with a financial institution (such as a bank or credit union); or
- employment with a licensed casino or other gaming establishment
Before an employer can run a background check on a job applicant in Nevada, the employer must inform the applicants ahead of time and get their written consent (this disclosure to the applicant needs to be a separate document that concerns only the report and nothing else). The employer must also tell applicants if they are disqualified from the job based on the background check.
Note that in Nevada, the Nevada Gaming Board usually has access to a person’s entire criminal record even if it has been sealed.
Reporting agency obligations under FCRA
Reporting agencies that provide background information are required to take reasonable steps to ensure that their information is correct and up-to-date. The agency must reasonably investigate any disputes in its reports. And if it finds mistakes, the agency must notify the employer it gave the inaccurate report to.
Employee protection against Title VII discrimination
The Equal Employment Opportunity Commission (EEOC) cautions employers against having a blanket policy disqualifying everyone with a criminal record. Instead, the EEOC advocates for more nuanced screening policies for job applicants who happen to have a criminal record. Specifically, employers should consider:
- the type of crime the applicant was convicted of and whether it is serious enough to warrant disqualification;
- the amount of time that has elapsed since the crime and the present;
- the type of job the applicant is applying for, and whether the criminal record jeopardizes the applicant’s ability to carry out the duties; and
- the applicant’s reasons for having a criminal record and any mitigating factors that make the applicant more hireable.
Employee rights regarding social media
Under NRS 613.135, employers are not allowed to require applicants or employees to give them their social media login information.
Sealing criminal records in Nevada
Most criminal cases can be sealed in Nevada after a pre-determined waiting period. And once a case is sealed, it should not appear on the person’s future background check (with some exceptions).
Note that charges that get dismissed can be sealed right away. And some charges may never be sealed. Learn more about how to seal Nevada criminal records.
