['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Nevada, an employer/former employer may disclose to a prospective employer information about employee/former employee job performance, diligence, skill, reliability, or illegal/wrongful acts, unless he/she discloses information:
- With malice/ill will,
- Believed inaccurate,
- That had no grounds for believing it to be accurate,
- Recklessly,
- Intentionally inaccurate or misleading, or
- In violation of laws or agreements.
An employer may provide to an authorized fire-fighting or law enforcement agency, upon written, hand-delivered request, information listed in Nevada Revised Statute 239B.020 about an employee/former employee for the purpose of employment as a firefighter or peace officer, as applicable, unless prohibited by law/regulation.
An employer may not blacklist an employee in order to prevent him/her from obtaining or keeping employment.
Upon request of an employee who worked at least 60 days, an employer must give an employee/former employee:
- At the time of voluntary or involuntary discharge, a written statement of the true reason for the discharge; and
- A statement of meritorious services performed.
Arrest record inquiries
Both the EEOC and Nevada have no laws or regulations specifically prohibiting arrest record inquiries. However, the “Pre-Employment Inquiry Guide” published by the Nevada Equal Rights Commission says that employers may not ask if an applicant has ever been arrested.
This is more stringent than the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Both the EEOC and Nevada have no laws or regulations specifically prohibiting conviction record inquiries. The “Pre-Employment Inquiry Guide” published by the Nevada Equal Rights Commission says that employers may ask applicants about felony convictions or misdemeanors within a time period, which resulted in imprisonment. However, this question must be followed by a statement that the conviction does not automatically bar employment. Employers can obtain conviction or current parole and probation records from criminal justice agencies.
This is less stringent than the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Nevada Administrative Office of the Courts
Arrest record inquiries
Nevada Equal Rights Commission
Conviction record inquiries
Nevada Equal Rights Commission
Regulations
Employer immunity from disclosure claims
Nevada Revised Statute 41.755, Limitations on liability of employer who discloses information regarding employee to prospective employer of employee; exceptions
Nevada Revised Statute 239B.020, Request by law enforcement agency for certain information on applicant for position of peace officer from employer or former employer of applicant; use of information; confidentiality
Nevada Revised Statute 613.200, Prevention of employment of person who has been discharged or who terminates employment unlawful; criminal and administrative penalties; exception
Nevada Revised Statute 613.210, Blacklists unlawful; recommendations and statements to be provided employee by employer
Assembly Bill No. 51, Chapter 285, An Act to amend NRS 239B.020 and NRS 41.755, in relation providing information about an applicant for employment as a firefighter.
Arrest record inquiries
Nevada Revised Statute 179A.100, Records that may be disseminated without restriction; records that must be disseminated upon request; information that must be disseminated only with written consent
Conviction record inquiries
Nevada Revised Statute 179A.100, Records that may be disseminated without restriction; records that must be disseminated upon request; information that must be disseminated only with written consent
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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