Can an Employer Refuse to Hire an Applicant with a Criminal History?

Many individuals with a criminal history have a difficult time finding employment. As many as 29 states and 150 counties or cities have enacted “ban the box” laws that limit the ability of employers to ask applicants whether they have a criminal history. However, many of these laws apply only to government employers.

As of January 1, 2018, Nevada law requires public employers (state, city, county, etc.) to give a fair chance to applicants who have a criminal history. Specifically, Nevada’s “ban-the-box” law prohibits government employers from considering criminal history until a final interview or until the employer extends an offer of employment to the applicant. This means that applications shouldn’t ask if an applicant has been convicted of a felony or if he or she has a criminal background.

A government employer may not consider the following:

• An arrest that did not result in a conviction;
• A record of conviction that was dismissed, expunged, or sealed; or
• An infraction or misdemeanor for which a sentence of imprisonment in a county jail was not imposed.

Of course, if state or federal law specifically disqualifies an individual with a criminal history from being employed, then the entity may notify the applicant earlier in the process that he or she is not qualified.

A government entity can rescind a conditional offer of employment to an individual who has been convicted of a criminal offense or against whom pending charges were filed within the previous 6 months only after considering the following:

• Whether the criminal offense directly relates to the responsibilities of the position;
• The nature and severity of the criminal offense;
• The age of the person at the time of the commission of the criminal offense;
• The period between the commission of the criminal offense and the date of the application for employment; and
• Any information or documentation demonstrating the person’s rehabilitation.

An employment application must let applicants know that the employer will consider the factors listed above in making its hiring decision and that a record of conviction won’t necessarily bar the applicant from employment.

If an employer rescinds an offer based on criminal history, then it must do the following:

• Rescind the offer in writing;
• Include a statement indicating that the offer was rescinded based on the applicant’s criminal history; and
• Give the applicant an opportunity to discuss the basis for the rescission with the director of human resources.

If a government employer violates these guidelines, then an applicant can file a complaint with the Nevada Equal Rights Commission, and, in some cases, the applicant may be able to file a lawsuit.

Note that this law currently doesn’t apply to the following:

• Private employers;
• Peace officers;
• Firefighters;
• Positions that involve access to crime data.

Finally, all employers–public or private–may be liable for using criminal history as a basis for not hiring an applicant to cover up discrimination based on race, gender, or another protected class.