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How Can a Criminal Record Affect A Nevada Job Application?

How Can a Criminal Record Affect A Nevada Job Application?
A criminal record can have long-lasting consequences, especially when it comes to applying for jobs. Nevada workers who face this situation should take the time to understand the kind of information Nevada employers can get, and how employers can and can’t use criminal records to make hiring decisions.

Nevada limits the kind of criminal background information an employer can obtain without the applicant’s consent

Under Nevada law, without the applicant’s consent most employers can only find out about a job applicant’s past convictions and any ongoing criminal proceedings, including probation and parole. Arrest information isn’t available without a full background check. There’s one important exception that captures a lot of job applicants in Las Vegas: employers in the gaming industry can access sealed criminal records, bankruptcy information, and civil judgment records to verify that applicants for gaming licenses or registrations as gaming employees have not broken any gaming laws or otherwise have potentially disqualifying pasts. Under both federal and state law, an employer can get a full criminal background check only if an applicant consents. Getting a full report requires the submittal of complete fingerprint card. A full background report reveals numerous details about the applicant, including arrests, charges, and incarceration details.

When an employment decision on an applicant’s criminal history may be unlawful

Just because an employer discovers that an applicant has committed a crime doesn’t necessarily mean that the applicant will be turned away. Job applicants can improve their chances simply by being honest about their past, so their background checks don’t turn up surprises that call into question the applicant’s candor. Federal law protects applicants who get turned away for erroneous background check results, and also provides recourse for some applicants who are unfairly rejected on the basis of their history. The federal Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681, imposes requirements on employers who wish to obtain and use criminal background checks. In addition to getting an applicant’s written consent to conduct a criminal background check, the FCRA also requires the employer to notify the applicant if it will base its employment decision on the report, provide the applicant with a copy of the report, and notify the applicant if a final decision was based on the report. The job applicant has the opportunity to dispute the content of a report if it contains errors, as is unfortunately quite common. In the right circumstances, denying employment on the basis of a criminal background check can violate federal discrimination law. Under Title VII of the Civil Rights Act of 1964, an employer cannot base employment decisions on criminal background checks if doing so would significantly disadvantage a racial group and they are not “job related and consistent with business necessity.” The federal Equal Opportunity Employment Commission (EEOC) advises employers to consider the nature of the crime, when it occurred, and whether it is related to the job in question, and also give the applicant a chance to explain the record. An employer also needs to apply the same standard to all applicants with similar criminal histories. The EEOC further cautions employers against relying on arrest records, which in and of themselves are not proof that the applicant has broken the law, without further investigation.

If in doubt, an attorney can help

At Greenman Goldberg Raby Martinez we work hard to help our clients thrive. If you are concerned about how mistakes from your past could affect your job prospects, our attorneys can help you find a way to put them in the best light and protect yourself from unlawful behavior by employers. To speak to an attorney call us today at 702-388-4476, or reach us through our contact page.

What Constitutes Wrongful Termination in Nevada?

Because Nevada is an at-will employment state, an employer here is free to fire employees as it sees fit, regardless of whether the employee has done something to deserve losing the job. But state and federal laws provide numerous exceptions to this general rule by defining when a fired employee has a cause of action for wrongful termination. Generally speaking, laws related to wrongful termination are designed to prevent discriminatory, retaliatory, or abusive behavior by employers.  The wrongful termination cause of action isn’t based on a single statute or rule. Instead, a claim for wrongful termination needs to be grounded in a specific legal protection granted by state or federal law.

Federal laws prohibiting employment discrimination

Although not labeled “wrongful termination” laws, a range of federal civil rights laws have the effect of defining a range of discriminatory employment behavior that would qualify as wrongful termination. Here are a few examples:
  • Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., an employer is prohibited from firing an employee on the basis of the employee’s race ,color, religion, sex, national origin, or pregnancy (including conditions related to pregnancy).
  • The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq., prohibits discrimination against workers who are age 40 or older.
  • The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq., prohibits employment discrimination against employees with disabilities.
  • The Genetic Information Nondiscrimination Act of 2008 (GINA), prohibits discrimination on the basis of an employee’s genetic information.
In addition to prohibiting discrimination, these statutes also prevent employers from retaliating against employees who raise concerns about potential violations. Numerous other statutes also protect employees who come forward with information about an employer’s unlawful behavior. For example, the Sarbanes-Oxley Act protects employees who notify the Securities and Exchange Commission about an employer’s violation of federal securities laws. Generally speaking, these laws only apply to employers over a certain size, and they impose certain other technical requirements for complaints to be raised. In some cases the rules vary for employees of federal agencies. The U.S. Equal Employment Opportunity Commission is a good resource for information about federal employment laws.

Nevada wrongful termination laws

Nevada law adds to the protections granted by federal law in a number of important areas. NRS 613.330 expands on the federally protected categories to also prohibit employment discrimination based on an employee’s actual or perceived sexual orientation, gender identity, or expression. It also prohibits employers from discriminating against employees who use service animals to assist with a disability. Other laws prohibit employment decisions based on some employees’ credit information and otherwise lawful activities outside of work hours. Like federal laws, state laws have limits and only apply to certain employers. The Nevada Equal Rights Commission provides information about the state’s employment laws. Contract law is another state source of wrongful termination lawsuits. One reason employers often ask employees to sign an agreement that includes language defining their relationship as “at-will” is because a contract can otherwise change the at-will nature of the relationship. Under Nevada law, an employer who contractually promises an employee that a job is guaranteed for a period of time cannot freely fire the employee without complying with the contract’s terms. If an employment contract is in writing, it might have mechanisms for ending the relationship early. But quite often wrongful termination arises when employment contracts aren’t written down—that is, they are agreed to orally, or they arise through implication. An employment contract might exist if a manager tells an employee that her job is secure through a certain date, or if an employee handbook describes a limited set of circumstances where an employee can be fired.

We are here for Las Vegas workers

Laws governing wrongful termination have complex contours. If you have questions about how a federal or state law might apply to your situation, the experienced attorneys at Greenman Goldberg Raby Martinez are here to help. For a free consultation with an attorney, call us today at 702-388-4476. We can also be reached through our contact page.

Important Features of the FMLA Explained

Important Features of the FMLA Explained
The Family and Medical Leave Act of 1993, or FMLA, 29 U.S.C. 2601 et seq., is one of the important federal laws designed to protect the job security of workers faced with difficult personal circumstances. Employers and employees in Las Vegas should take the time to understand what the FMLA covers, and its limitations.

The FMLA applies only to certain employers and employees

The FMLA’s rules apply to all public agencies and private employers who had at least 50 employees for at least 20 workweeks in the current or previous year. To be eligible for FMLA benefits, an employee of one of the covered employers must have been employed for at least 12 months, consecutively or otherwise, and worked at least 1,250 hours during that time before taking leave. The employee’s job also needs to be at or within 75 miles of a location with at least 50 employees.

When can an employee take leave under the FMLA?

The FMLA requires covered employers to grant up to 12 workweeks of unpaid leave each year to qualified employees when their circumstances fall within one of five situations:
  1. A serious medical condition prevents the employee from working.
  2. An immediate family member of the employee has a serious medical condition that requires the employee’s care. Note that “immediate family” includes only blood relatives; relatives by marriage are not covered. Also bear in mind that time off to care for an adult child is only covered if has a serious disability that renders the child unable to care for him or herself.
  3. The employee’s child is born, or the employee needs to take time to care for his or her newborn child.
  4. The employee needs time for the placement or care of an adopted or foster care child.
  5. The employee’s spouse, child, or parent who requires the employee’s care for a serious injury or illness is a member of the military, including in an active role for the National Guard or as a reservist. In this circumstance, the FMLA requires employers to allow up to 26 weeks of leave.

The FMLA doesn’t require paid leave, but protects the employee’s job

A central feature of the FMLA is that it prohibits employers from making any employment decisions based only on an employee’s decision to take FMLA leave. This includes firing or demoting the employee, or changing the employee’s job responsibilities. The FMLA also protects employees from retaliation if they file a complaint abut an employer’s violation of the law. Another important feature of the FMLA is that it does not require employees to pay their employees who are on leave. Some employers offer paid FMLA leave as an incentive, but a more common practice allows employees to draw down their accumulated paid time off (PTO) while on leave. An employer can require its employees to use their PTO for FMLA leave, but to do so it must first provide ample notice of the requirement.

Injury and FMLA leave

The relationship between FMLA leave and other types of leave often leads to confusion. One example of this is when a worker is forced to take time off work due to a work-related injury and the employee has rights under workers’ compensation laws as well as the FMLA. In such circumstances. employers are required to provide whichever law’s benefits are greater. Workers’ compensation laws require a wide range of benefits, including some paid leave and medical reimbursement, but employers typically can also draw down the employee’s annual FMLA leave allotment while the employee is off work on a workers’ comp claim.

GGRM can help you understand the FMLA

Greenman Goldberg Raby Martinez has helped Las Vegas employees protect their rights for more than 45 years. If you are faced with difficult circumstances and have questions about how the FMLA affects your rights, our experienced team of attorneys is here to help. For a free consultation reach out to us today at 702-388-4476, or contact us through our website.