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EEOC Updates Allowable Criminal Background Checks; Employers Incensed

The Equal Employment Opportunity Commission has updated its policy on the use of criminal background checks by employers. Under the updated policy, it is now illegal for employers to deny employment to applicants based on arrest or conviction records — including felonies, unless there’s a direct correlation between the criminal record and the job being sought.

The new policy urges employers to not ask a job applicant about past convictions on an employment application. If a criminal background check is conducted and raises areas of concern, employers are urged to not reject an applicant outright. Instead employers are guided to give the job applicant an opportunity to explain, produce evidence that the background check is inaccurate, and/or show his/her conviction was expunged. Employers are also urged to hire an applicant if the previous criminal conduct is not related to the potential job or if the applicant has been fully rehabilitated.

The policy update was made because of the disparate employment opportunities available to people of color who have higher arrest and conviction rates than whites. Employers, however, are incensed. Many feel the new policy will make background checks more cumbersome and expensive. Some employers also fear the updated policy will expose existing workers and customers to potentially unsavory workers.
While some states have laws that preclude an employer from asking a job applicant about his/her past criminal conduct, Nevada is not one of those states. Nevada Revised Statutes (NRS) 449.176 through NRS 449.188 do allow an employer to conduct a fingerprint-based criminal history background check on each potential new employee if the business is a(an):
• Agency to provide personal care services in the home
• Agency to provide nursing in the home
• Facility for intermediate care
• Facility for skilled nursing
• Residential facility for groups • Homes for individual residential care
The Las Vegas law office of Lagomarsino Law did not represent anyone involved in the above-referenced case. The commentary is for educational and commentary purposes only. If you would like to be represented by a Nevada attorney, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.