Preemployment Inquiries Law Summaries
Nevada, Preemployment Inquiries Law Summaries
There are several laws in Nevada pertaining to criminal background checks in employment. Applicants for employment in school districts are required to submit fingerprints to be used for a criminal history check (Title 34, Ch. 391).
Criminal history checks are required for operators of foster homes and their employees (Title 38, Ch. 424). The law pertaining to the employment of personnel at nursing agencies is located at Title 40, Ch. 449).
Supervisory personnel of labor organizations representing casino employees are required to submit fingerprints to be used for a criminal history check on such personnel (Title 41, Ch. 463A). The provision pertaining to criminal history checks for security guards is located at Title 54, Ch. 648. Criminal history checks are also required for workers in dwelling units for persons 55 and older (A. 419, L. 2003).
The state has ratified the National Crime Prevention and Privacy Compact (Sec. 179A.800), and there are provisions relating to the hiring of unauthorized aliens (Ch. 316 (A. 383), L. 2007, effective October 1, 2007).
The full text of these laws is available beginning at Employment Practices ¶29-23,600.01 .
Nevada's general job reference liability law is located at Title 3, Ch. 41. The state also has job reference liability provisions for public safety agencies (Ch. 399 (A. 297), L. 1999), and service letter requirements (Title 53, Ch. 613).
References are to the Nevada Revised Statutes.
DEFINITIONS
For purposes of Nevada's job reference liability law, “employee” means a person who currently renders or previously rendered time and services to an employer (Sec. 41.755, as amended by Ch. 399 (A. 297), L. 1999, effective May 29, 1999).
For purposes of Nevada's general job reference liability provisions, “employer” includes an employee or agent of an employer who is authorized by the employer to disclose information regarding an employee (Sec. 41.755, as amended by Ch. 399 (A. 297), L. 1999, effective May 29, 1999). For purposes of the public safety provisions, the term includes a public employer and a private employer (Sec. 239B.020(6), as amended by Ch. 285 (A. 51), L. 2007).
WHAT THE EMPLOYER MUST DO
Background checks.-Schools.- Each applicant for employment in a school district, except a teacher or other person licensed by the superintendent of public instruction, must, as a condition to employment, submit to the school district a full set of fingerprints and written permission authorizing the school district to forward the fingerprints to the Central Repository for Nevada Records of Criminal History for its report on the criminal history of the applicant and for submission to the FBI for its report on the criminal history of the applicant (Sec. 391.100(3), as amended by A. 155, L. 2003).
Except as otherwise provided in Sec. 391.100(5) below, the board of trustees of a school district shall not require a licensed teacher or other person licensed by the superintendent of public instruction who has taken a leave of absence from employment authorized by the school district, including, without limitation (Sec. 391.100(4), as amended by A. 155, L. 2003):
sick leave;
sabbatical leave;
personal leave;
leave for attendance at a regular or special session of the Nevada legislature if the employee is a member thereof;
maternity leave; and
leave permitted by the Family and Medical Leave Act of 1993;
to submit a set of his or her fingerprints as a condition of return to or continued employment with the school district if the employee is in good standing when the employee began the leave.
A board of trustees of a school district may ask the superintendent of public instruction to require a person licensed by the superintendent who has taken a leave of absence from employment authorized by the school district to submit a set of his or her fingerprints as a condition of return to or continued employment with the school district if the board of trustees has probable cause to believe that the person has committed a felony or an offense involving moral turpitude during the period of his or her leave (Sec. 391.100(5), as amended by A. 155, L. 2003).
Foster homes.- Each applicant for a license to conduct a foster home, prospective employee of that applicant or of a person who is licensed to conduct a foster home, or resident of a foster home who is 18 years of age or older must submit to the division a complete set of fingerprints and written permission authorizing the division to forward those fingerprints to the central repository for Nevada records of criminal history for submission to the FBI for its report to enable the division to conduct an investigation pursuant to Sec. 424.031 (Sec. 424.033(1)).
Nursing agencies.- Except as otherwise provided in Sec. 449.179(2) below, within 10 days after hiring an employee or entering into a contract with an independent contractor, the administrator of, or the person licensed to operate, an agency to provide personal care services in the home, an agency to provide nursing in the home, a facility for intermediate care, a facility for skilled nursing or a residential facility for groups must (Sec. 449.179(1), as amended by A. 337, L. 2005):
Obtain a written statement from the employee or independent contractor stating whether he or she has been convicted of any crime listed in Sec. 449.188;
Obtain an oral and written confirmation of the information contained in the written statement;
Obtain from the employee or independent contractor two sets of fingerprints and a written authorization to forward the fingerprints to the central repository for Nevada records of criminal history for submission to the FBI for its report; and
Submit to the central repository for Nevada records of criminal history the fingerprints obtained as described in item (3) just above.
The administrator of, or the person licensed to operate, an agency to provide personal care services in the home, an agency to provide nursing in the home, a facility for intermediate care, a facility for skilled nursing or a residential facility for groups is not required to obtain the information described just above from an employee or independent contractor who provides proof that an investigation of his or her criminal history has been conducted by the central repository for Nevada records of criminal history within the immediately preceding six months and the investigation did not indicate that the employee or independent contractor had been convicted of any crime set forth in Sec. 449.188 (Sec. 449.179(2), as amended by A. 337, L. 2005).
The administrator of, or the person licensed to operate, an agency to provide personal care services in the home, an agency to provide nursing in the home, a facility for intermediate care, a facility for skilled nursing or a residential facility for groups must ensure that the criminal history of each employee or independent contractor who works at the agency or facility is investigated at least once every five years. The administrator or person must (Sec. 449.179(3), as amended by A. 337, L. 2005):
If the agency or facility does not have the fingerprints of the employee or independent contractor on file, obtain two sets of fingerprints from the employee or independent contractor;
Obtain written authorization from the employee or independent contractor to forward the fingerprints on file or obtained pursuant to item (1) just above to the central repository for Nevada records of criminal history for submission to the FBI for its report; and
Submit the fingerprints to the central repository for Nevada records of criminal history.
Upon receiving fingerprints submitted pursuant to this section, the central repository for Nevada records of criminal history must determine whether the employee or independent contractor has been convicted of a crime listed in Sec. 449.188 and immediately inform the health division and the administrator of, or the person licensed to operate, the agency or facility at which the person works whether the employee or independent contractor has been convicted of such a crime (Sec. 449.179(4)).
The central repository for Nevada records of criminal history may impose a fee upon an agency or a facility that submits fingerprints pursuant to this section for the reasonable cost of the investigation. The agency or facility may recover from the employee or independent contractor not more than one-half of the fee imposed by the central repository. If the agency or facility requires the employee or independent contractor to pay for any part of the fee, it must allow the employee or independent contractor to pay the amount through periodic payments (Sec. 449.179(5)).
Each agency to provide personal care services in the home, agency to provide nursing in the home, facility for intermediate care, facility for skilled nursing and residential facility for groups must maintain accurate records of the information concerning its employees and independent contractors collected pursuant to Sec. 449.179, and must maintain a copy of the fingerprints submitted to the central repository for Nevada records of criminal history and proof that it submitted two sets of fingerprints to the central repository for its report. These records must be made available for inspection by the health division at any reasonable time and copies must be furnished to the health division upon request (Sec. 449.182, as amended by A. 337, L. 2005).
Upon receiving information from the central repository for Nevada records of criminal history pursuant to Sec. 449.179 above, or evidence from any other source, that an employee or independent contractor of an agency to provide personal care services in the home, an agency to provide nursing in the home, a facility for intermediate care, a facility for skilled nursing or a residential facility for groups has been convicted of a crime listed in Sec. 449.188(1)(a), the administrator of, or the person licensed to operate, the agency or facility must terminate the employment or contract of that person after allowing him or her time to correct the information as required below (Sec. 449.185(1), as amended by A. 337, L. 2005).
If an employee or independent contractor believes that the information provided by the central repository is incorrect, he or she may immediately inform the agency or facility. An agency or facility that is so informed must give the employee a reasonable amount of time of not less than 30 days to correct the information received from the central repository before terminating the employment or contract of the person (Sec. 449.185(2)).
An agency or facility that has complied with Sec. 449.179 above may not be held civilly or criminally liable based solely upon the ground that the agency or facility allowed an employee or independent contractor to work (Sec. 449.185(3)):
Before it received the information concerning the employee or independent contractor from the central repository;
During any period required pursuant to Sec. 449.185(2) above to allow the employee or independent contractor to correct that information;
Based on the information received from the central repository, if the information received from the central repository was inaccurate; or
Any combination thereof.
An agency or facility may be held liable for any other conduct determined to be negligent or unlawful (Sec. 449.185).
Casino employees.- Every labor organization that represents gaming casino employees in Nevada must file with the board a list of its personnel who (Sec. 463A.030(1)):
Adjust grievances for, negotiate or administer the wages, hours, working conditions or conditions of employment of any gaming casino employee;
Solicit, collect or receive any dues, assessments, levies, fines, contributions or other charges within Nevada for or on behalf of the organization from gaming casino employees; or
Act as officers, members of the governing body, business agents or in any other policymaking or supervisory position in the organization.
Each person listed above must file with the board a complete set of his or her fingerprints which the board may forward to the Central Repository for Nevada Records of Criminal History for submission to the FBI for its report; complete information in writing concerning his or labor organization activities, prior performance of the same or similar functions, previous employment or occupational history; and his or her criminal record if any, covering at least a 10-year period, unless the board determines that a shorter period is appropriate (Sec. 463A.030(2), as amended by A. 155, L. 2003).
Security guards.- Except as otherwise provided below, it is unlawful for a person to (Sec. 648.203(1)):
Allow an employee, including an independent contractor, to perform any work regulated pursuant to this chapter unless the employee holds a work card authorizing his or her work that is issued by the sheriff of the county in which the work is performed. The provisions of this paragraph do not apply to a person licensed pursuant to this chapter.
Work as a security guard unless he or she holds a work card authorizing his or her work as a security guard issued in accordance with applicable ordinances by the sheriff of the county in which the work is performed.
This provision does not apply in any county whose population is less than 100,000, but this subsection does not prohibit a board of county commissioners from adopting similar restrictions by ordinance (Sec. 648.203(2)).
The sheriff of any county in which such restrictions apply shall require any person applying for such a work card to submit a complete set of his or her fingerprints to the sheriff who may forward the fingerprints to the Central Repository for Nevada Records of Criminal History for submission to the FBI to determine the applicant's criminal history (Sec. 648.203(3), as amended by A. 155, L. 2003).
Dwelling units for persons 55 and older.- With specified exceptions, a landlord of dwelling units intended and operated exclusively for persons 55 years of age and older may not employ any person who will work 36 hours or more per week and who will have access to all dwelling units to perform work on the premises unless the person has obtained a work card issued by the sheriff of the county in which the units are located and renewed that work card as necessary. Applicants for these work cards must submit fingerprints for purposes of determining criminal history (Sec. 118A.335, as amended by Ch. 315 (A. 352), L. 2007).
The sheriff shall not issue a work card to any person who (Sec. 118A.335, as amended by Ch. 315 (A. 352), L. 2007):
has been convicted of a category A, B or C felony or of a crime in another state which would be a category A, B or C felony if committed in Nevada;
has been convicted of a sexual offense;
has been convicted of a crime against any person who is 60 years of age or older or against a vulnerable person for which an additional term of imprisonment may be imposed pursuant to NRS 193.167 or the laws of any other jurisdiction;
has been convicted of a battery punishable as a gross misdemeanor; or
within the immediately preceding five years: (a) has been convicted of a theft; or (b) has been convicted of a violation of any state or federal law regulating the possession, distribution or use of a controlled substance.
Property management permit holders and independent contractors need not obtain a work card. Additionally, an offender in the course and scope of his or her employment in a work program directed by the warden, sheriff, administrator or other person responsible for administering a prison, jail or other detention facility need not obtain a work card. This exemption also applies to persons performing work through a court-assigned restitution or community service program (Sec. 118A.335, as amended by Ch. 315 (A. 352), L. 2007).
If the sheriff does not issue a work card to a person because the information received from the Central Repository for Nevada Records of Criminal History indicates that the person has been convicted of a crime listed in Sec. 118A.335(4) and the person believes that the information provided by the Central Repository is incorrect, the person may immediately inform the sheriff. If the sheriff is so informed, he or she shall give the person at least 30 days in which to correct the information before terminating the temporary work card (Sec. 118A.335, as amended by Ch. 315 (A. 352), L. 2007).
National Crime Prevention and Privacy Compact.- The state has ratified the National Crime Prevention and Privacy Compact to provide a legal framework for the establishment of a cooperative federal-state system for the interstate and federal-state exchange of criminal history records for noncriminal justice uses. “Noncriminal justice uses” means uses of criminal history records for purposes authorized by federal or state law other than purposes relating to criminal justice activities, including employment suitability, licensing determinations, immigration and naturalization matters, and national security clearances (Sec. 179A.800).
Social security number verification/employment of unauthorized aliens.- Upon finding that the Attorney General of the United States has made a final decision and entered an order that a person who holds a state business license has engaged in the unlawful hiring or employment of an unauthorized alien pursuant to U.S.C. Section 1324a(e), the Nevada Tax Commission shall hold a hearing to determine whether to take action against the person (Sec. 10, Ch. 316 (A. 383), L. 2007, effective October 1, 2007).
The Nevada Tax Commission shall consider any proof submitted by the person who holds a state business license which demonstrates that the person attempted to verify the social security number of the unauthorized alien within six months from the date on which the unauthorized alien was allegedly employed. Such proof may include, without limitation, a printout from the link maintained on the Internet website of the Department of Business and Industry pursuant to Sec. 6, Ch. 316 (A. 383), L. 2007 (see below). Such proof may be used as prima facie evidence that the violation was not willful, flagrant or otherwise egregious (Sec. 10, Ch. 316 (A. 383), L. 2007, effective October 1, 2007).
The Director of the Department of Business and Industry shall include on the Internet website maintained by the department a link which connects to the Social Security Administration where an employer may verify the social security number of an employee. The link must be maintained in the area of the website that encourages and promotes the growth, development and legal operation of businesses within the state (Sec. 6, Ch. 316 (A. 383), L. 2007, effective October 1, 2007).
If the Nevada Tax Commission determines that the person who holds the state business license violated the federal law willfully, flagrantly or otherwise egregiously, the Commission shall impose an administrative fine against the person (Sec. 10, Ch. 316 (A. 383), L. 2007, effective October 1, 2007).
CCH Note. In August 2007, the voluntary Basic Pilot Program, an Internet-based system operated by DHS in partnership with the SSA that allows participating employers to electronically verify the employment eligibility of their newly hired employees, was renamed E-Verify.
Job reference liability.- Except as otherwise provided in Sec. 41.755(3) below, an employer who, at the request of an employee, discloses to a prospective employer of that employee information regarding the ability of the employee to perform his or her job, the diligence, skill or reliability with which the employee carried out his or her job duties, or an illegal or wrongful act committed by the employee, is immune from civil liability for such disclosure and its consequences (Sec. 41.755(1), as amended by Ch. 399 (A. 297), L. 1999, effective May 29, 1999).
Except as otherwise provided in Sec. 41.755(3) below, an employer who discloses information regarding an employee to a public safety agency pursuant to Sec. 239B.020 (see below), is immune from civil liability for such disclosure and its consequences (Sec. 41.755(2), as amended by Ch. 285 (A. 51), L. 2007).
An employer is not immune from civil liability for a disclosure made pursuant to Sec. 41.755(1) above or Sec. 239B.020 (see below), or for the consequences of such a disclosure if the employer (Sec. 41.755(3), as amended by Ch. 285 (A. 51), L. 2007):
acted with malice or ill will;
disclosed information that it believed was inaccurate;
disclosed information that it had no reasonable grounds for believing was accurate;
recklessly or intentionally disclosed inaccurate information;
deliberately disclosed misleading information; or
disclosed information in violation of a state or federal law or in violation of an agreement with the employee.
Public safety agencies.- Upon the request of a public safety agency, an employer must provide to the public safety agency information, if available, regarding a current or former employee of the employer who is an applicant for the position of firefighter or peace officer, as applicable, with the public safety agency. A request for information by a public safety agency must be (Sec. 239B.020(1), as amended by Ch. 285 (A. 51), L. 2007):
in writing;
accompanied by an authorization signed by the applicant and notarized by a notary public or judicial officer in which the applicant consents to the release of the information; and
presented to the employer by a sworn officer or other authorized representative of the public safety agency.
The information that a public safety agency may request includes, without limitation (Sec. 239B.020(2), as amended by Ch. 285 (A. 51), L. 2007):
the date on which the applicant began his or her employment and, if applicable, the date on which the employment of the applicant was terminated;
a list of the compensation that the employer provided to the applicant during the course of the employment;
an application for a position of employment that the applicant submitted to the employer;
a written evaluation of the performance of the applicant;
a record of the attendance of the applicant;
a record of disciplinary action taken against the applicant;
a statement regarding whether the employer would rehire the applicant and, if the employer would not rehire, the reasons therefor; and
if applicable, a record setting forth the reason that the employment of the applicant was terminated and whether the termination was voluntary or involuntary.
An employer must not provide this information if the disclosure is prohibited by a federal or state statute or regulation (Sec. 239B.020(3), as amended by Ch. 285 (A. 51), L. 2007).
A public safety agency may use the information that it receives as described above only to determine the suitability of an applicant for employment as a firefighter or peace officer, as applicable (Sec. 239B.020(4), as amended by Ch. 285 (A. 51), L. 2007).
Except as otherwise provided above, a public safety agency must maintain the confidentiality of information that it receives as described above. A public safety agency may share information regarding an applicant that it receives as described above with another public safety agency if (Sec. 239B.020(5), as amended by Ch. 285 (A. 51), L. 2007):
the applicant is also an applicant for a position as a firefighter or peace officer, as applicable, with the other public safety agency and the applicant submitted a single application to be used by multiple public safety agencies; and
the confidentiality of the information is otherwise maintained.
Service letters.- An employer may give in writing, at the time an employee leaves or is discharged from the service of the employer, a truthful statement of the reason for such leaving or discharge. Also, an employer may give any employee or former employee a statement with reference to any meritorious services that the employee may have rendered to that employer. The employer must supply these statements upon demand from the employee, but no such statement is required unless the employee has been in service for a period of not less than 60 days. Only one such statement may be issued to that employee (Sec. 613.210).
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