Background checks are a standard part of the hiring process today. However, when those reports are inaccurate, outdated, or misleading, they can lead to unfair job denials. Background check errors in Nevada can have serious consequences, and in some cases, may violate federal law under the Fair Credit Reporting Act (FCRA).
Understanding the Background Check Process
Before you start wondering, “Can an employer run a background check?” you must first understand what the background check includes. Many employers conduct employment background checks through a consumer reporting agency to obtain a background check report on a job candidate. These reports can include:
Criminal record and criminal convictions:
Background reports may list a candidate’s full criminal history, including convictions, arrests, or dismissed charges.
According to the FCRA and Nevada Revised Statutes (NRS), employers cannot use arrests that did not lead to convictions to deny employment unless job-related. Including outdated or irrelevant criminal record information can constitute a violation.
The criminal background check is mandatory as the hiring parties conduct background checks to confirm the candidate’s reliability.
Credit history and credit reports:
Credit checks may reveal bad credit, loan defaults, or bankruptcies. Under Nevada law and the FCRA, employers must obtain written consent before checking a candidate’s credit history for employment purposes.
Additionally, Assembly Bill 181 restricts employers from using credit information unless it’s directly relevant to the job position. After all, pre-employment checks are crucial for informed hiring decisions.
Traffic violations and drug test results:
Minor traffic violations should not typically be used as grounds for denying employment unless driving is a key job requirement.
Additionally, under Nevada law, if a person tests positive on a drug test, the employer must provide written notice and the opportunity to explain or contest the results.
Information from public records and job applications:
Background reports often contain public records, but errors like mixing up identities can lead to inaccurate information.
Under the FCRA, employers must notify applicants when adverse information from public sources will be used to make employment decisions, and give them a chance to respond.
Companies or hiring parties perform background checks on potential employees in many states, but it all comes down to what is legal. Let’s look at the FCRA for further details:
What the Fair Credit Reporting Act Requires
The Fair Credit Reporting Act is a federal law that governs how background check companies and employers obtain background checks and use them for employment purposes. Under the FCRA, employers must:
Get a written disclosure and permission from the job applicant:
Employers must provide a clear, standalone written disclosure and receive explicit written consent before requesting a background check report. Failure to do so violates 15 U.S.C. § 1681b(b)(2)(A) of the FCRA.
Provide a copy of the background report if adverse decisions are made:
Before taking any adverse action, such as rescinding a job offer, the employer must share the report and a summary of rights under the FCRA (15 U.S.C. § 1681b(b)(3)(A)). This ensures transparency and allows applicants to dispute errors.
Notify the applicant of any adverse action (like denial of employment):
If the employer decides not to hire based on the report, they must provide an “adverse action” notice outlining the decision, the agency used, and the applicant’s rights to dispute. This requirement is essential for legal compliance.
Allow the applicant five business days to dispute the information:
Under federal guidance, the applicant should have time to correct inaccuracies before any final employment decisions. Many employers ignore this rule, exposing themselves to liability under FCRA.
Common Errors in Background Reports
Errors in employment-related background checks are more common than most people realize. These include:
Listing dismissed charges or expunged records:
According to Nevada law, records that have been sealed or expunged should not appear in employment background checks. Their inclusion can lead to illegal employment discrimination under both state and federal laws, especially if used to deny jobs.
Reporting arrests instead of criminal convictions:
Under EEOC guidance and federal law, employers should not rely solely on arrests without convictions to make hiring decisions.
Relying on arrests disproportionately impacts minority groups and may create a disparate impact, violating Title VII of the Civil Rights Act.
Including criminal record information belonging to someone else:
A common issue occurs when background checks confuse individuals with similar names or birthdates. This results in false matches that can cost someone a job offer unfairly.
Under the FCRA, agencies must use reasonable procedures to ensure accuracy (15 U.S.C. § 1681e(b)).
Displaying bad credit that has been corrected or outdated:
Credit information older than seven years (except bankruptcies) should not appear in reports used for employment purposes. Employers who use outdated or corrected data without re-verification may violate the FCRA and Nevada’s AB 181.
Legal Rights and Remedies in Nevada For Background Check Errors In Nevada
Nevada follows both federal law and specific local laws that protect job applicants from employment discrimination due to faulty background reports.
If your prospective employer used an incorrect background check to deny your job application, they may be in violation of the FCRA or even liable under negligent hiring standards.
Employers must ensure legal compliance by taking the proper steps. If they fail to verify the background report or do not give the candidate a chance to respond, they may be held liable.
Nevada law also supports the right to sue for damages in civil court if background errors lead to provable harm.
Background-Check Errors in Nevada: When a Bad Report Becomes Illegal
A background check becomes illegal when:
It contains inaccurate information, and the employer knew or should have known:
Employers have a duty to use reputable background check companies and act on accurate data. Ignoring obvious errors or red flags may qualify as negligent hiring, exposing the business to lawsuits.
The employer denies a job offer without following the proper adverse action process:
Skipping required FCRA steps like giving a copy of the report, allowing time to dispute, or failing to issue a formal adverse action notice is a clear violation of 15 U.S.C. § 1681b(b)(3)(A).
Blanket policy
It is a policy that excludes applicants with any criminal history, which may cause a disparate impact on protected groups.
Such policies are discouraged by the Equal Employment Opportunity Commission (EEOC) and can lead to legal challenges under Title VII. Employers should conduct individualized assessments.
The employer fails to consider the nature of the offense, how long ago it occurred, and its relevance to the job:
The EEOC advises that a past conviction should only disqualify a job candidate if it’s directly relevant. For example, a long-ago drug possession charge should not prevent someone from becoming a delivery driver today.
Consequences for Employers
Employers who misuse employment background checks can face:
Fines and penalties from a federal agency:
Regulatory bodies like the FTC and EEOC enforce background check compliance. Violations of the FCRA can result in significant penalties per incident.
Lawsuits based on employment discrimination:
If a flawed report leads to discrimination based on race, national origin, or other protected classes, employers may face claims under Title VII and state-level anti-discrimination laws.
Claims for damages due to negligent hiring lawsuits:
If an employee with a known risk harms others and the employer failed to run background checks properly, the company could be sued for negligent hiring. Courts expect employers to balance fair hiring with public safety.
How to Protect Yourself as a Job Applicant
Before you consider hiring an employment lawyer for your lawsuit, you should also know how to protect your rights. Here’s what you need to do to protect yourself as a job applicant.
Always request a copy of your background check report:
Under the FCRA, you are entitled to see the same report your employer reviewed. This gives you the chance to catch and fix errors before they cost you the job.
If denied employment, ask for the adverse action notice:
Employers must tell you if a decision was made based on background data and provide details. This legal notice includes the name of the consumer reporting agency and how to contact them.
Dispute any incorrect information with the background check company:
If your report includes errors, you have the right to file a dispute. The agency has 30 days to investigate and correct inaccuracies under 15 U.S.C. § 1681i.
Contact an employment lawyer to explore your rights:
If your dispute is ignored or you suffer financial loss, an employment lawyer can advise on filing a claim. They can help determine whether your rights were violated and pursue appropriate compensation. They can guide you regarding everything to know about a FCRA lawsuit and help win it.
Take Action with Legal Support From Employment Lawyers
If you’ve been denied a job due to background check errors in Nevada, you don’t have to accept it silently. Whether it’s due to a criminal record, credit history, or mistaken identity, your rights under the Fair Credit Reporting Act give you power.
Challenge Background Errors In Nevada With BLG
The Bourassa Law Group can help. Our team of employment attorneys understands the serious impact a bad report can have on your career. If a potential employer used a flawed report against you, we will help you challenge it and pursue justice.
Contact Bourassa Law Group today for a free consultation. You deserve a fair shot at employment.
1-800-870-8910