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not meeting expectations of a background investigation

by carl
(nevada)

hired by the state of nevada DMV. Put on my application that I was pursuing a degree in business admin (have 140 semester hours) and answered the direct question if I had a degree "no".


Answered that I had no moving violations in the last 5 years. Had a speeding ticket in 2007 that my company was supposed to take care of but didn't. I still obtained a drivers license with to mention, and ran my record after being hired with no result. I did not remember this ticket.

I was released from my last company in 2008 when they sold and the market crashed. I had car insurance when I applied for the job, but spent every dime I had or could borrow to take this position. Insurance expired a month after I was employed but I had to pay my ticket first. State has a "fee" of $250 if insurance lapses at all.

Received a three month eval that was satisfactory for performance.



Hi Carl,

Could you possibly be more specific as to the reason you were let go?

Was it because you "falsified your employment application" by answering no with regard to the moving violation question?

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Background Investigation
by: Anonymous

Here I am, unemployed since the 16th of Feb and still no benefits. The state has my appeal but they tell me that they are so backed up there is no estimate of when my appeal will happen. They also say there is no time limit for their action.

Seems to me that every correspondence they send me has a 10 day time limit. Why do the states not have a time limit to schedule a hearing?


Hi,

I don't believe there is an time limit etched in stone, but they are mandated to do all the stuff they need to do in a timely manner.

If I were you, I'd call your state attorney generals office and ask or file a complaint .. or better still .. before you do that, call one of the numbers that's listed at the bottom of this page and ask them what is considered a reasonable length of time for an unemployment department to schedule an appeal hearing and issue the decision.

I know there are guidelines for that .. because some appeal departments you to use the excuse of being mandated by federal guidelines to "30 days" to hear and resolve an appeal as the reasoning for denying a postponement request I made, regardless if there was legitimate cause for the request.




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Background Investigation
by: Anonymous

I plan on mailing my appeal letter later today. I contacted the free legal phone number and left a message. Still haven't heard back.

I agree that this was employer oversight in reviewing my application. Should I point this out in writing or just state the facts and let the reviewing officer draw his own conclusion after reviewing seeing the evidence? Also, do you know, during the hearing can the state bring up other items or can they just argue what is specifically in the denial letter?


I do not think it would hurt to point out that you were truthful on the application with regard to "education" since that is what the determination referenced.

Have you contact the claims department to find out how you can get a copy of the file they have?

If I were you I'd want to know what the employer has provided to them.

The hearing officer can ask questions. I "almost" positive that in NV the claim file is transferred to the appeal section (some states do not so everything must be resubmitted).

I haven't heard much about how NV is conducting hearings, but I've heard some questionable things about other states .. like hearing officers actually giving more weight to non-appearing employer written statements than to the direct testimony of the appearing claimant.

I think what you should do is find NV's appeal hearing procedures and rules for the those that conduct the hearing.

I did a search and this is what came back

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Background Investigation
by: Anonymous

Well I finally received my denial letter and the only item listed specifically is that I "mis-lead" the employer by stating that I met the education requirements. In reviewing the handbook link that you sent, I cannot find any reference to "mis-leading" as being a cause for misconduct. So I assume they are actually saying dishonesty.

The job posting stated a 4 year degree "or equivalent education and experience". I have more than 140 hours from accredited institutions and I know it only takes 124-128 hours for a bachelors degree.

After listing my course of study as a bachelors degree, one of the next questions was specifically "do you have a bachelors degree"? I answered truthfully no to this question.

I believe with dishonesty there has to include an element of intent to decieve. Obviously this was not the case as I answered the questions truthfully. Also, they cannot claim deceit as to my qualifications as I scored a 96 percent on the position exam and received a performance evaluation that shows I was meeting all standards.

As the state is in serious financial trouble, it may just be that this was more of a cost saving issue.


Hi,

Since I'm prone to viewing misconduct as something which has an intention, I also would appeal because I hardly think answering "no" on the application with regard to a bachelors degree is misleading. It sounds more like a truthful statement of fact.

In my opinion, the cause of the termination would be the oversight of the employer when reviewing your application for the necessary requirements for the job .. not misconduct due to dishonesty.

Interesting that the moving violation isn't even mentioned .. eh?

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Background Investigation
by: Anonymous

Exactly - preceived dishonesty. Since they can't prove it was intentional do I have a chance on appeal? Would an abritrator not take into account that if I knew there was going to be a background check, I would have my wife quit her job to relocate? At my own expense?

Looking at Nevada Statutes I did nothing specifically mentioned that would disqualify me from benefits.

NRS 612.383 Discharge for crimes in connection with employment. Notwithstanding any other provisions of this chapter, an individual who has been discharged for commission of assault, arson in any degree, sabotage, grand larceny, embezzlement or wanton destruction of property in connection with the individual?s work shall be denied benefits based on wages earned from the employer concerned, provided such assault, arson in any degree, sabotage, grand larceny, embezzlement or wanton destruction of property is admitted in writing or under oath or in a hearing of record by the person or has resulted in a conviction in a court of competent jurisdiction.

(Added to NRS by 1975, 1006)

NRS 612.385 Discharge for misconduct. A person is ineligible for benefits for the week in which the person has filed a claim for benefits, if he or she was discharged from his or her last or next to last employment for misconduct connected with the person?s work, and remains ineligible until the person earns remuneration in covered employment equal to or exceeding his or her weekly benefit amount in each of not more than 15 weeks thereafter as determined by the Administrator in each case according to the seriousness of the misconduct.

[Part 5:129:1937; A 1939, 115; 1941, 412; 1943, 239; 1947, 413; 1949, 277; 1951, 339; 1955, 698]?(NRS A 1973, 1782; 1975, 1001; 1979, 1071; 1993, 1823)

I cant find anything in statute or code that defines "misconduct" at work. I had just received a 3 month evaluation and was meeting all expectations.


Charles,

In my opinion, statutes are useful for finding "provisions" which make exceptions to the usual disqualifications, but to understand how you might personally fight a denial of benefits .. I think you need more explanation.

Some states publish the precedent manual which the hearing officers must base their decisions on, but most don't publish this.

Nevada does have somewhat of a resource and it includes the "definition". This was actually unavailable for a while, but the link is working again .. so here you go.


I have one suggestion .. argue to the elements and semantics of the law that support a finding of "no misconduct".

If you're interested in reading precedents (unemployment case law) either call the appeal department and ask how you can access them .. or try fastcase.com for a 24 free trial to do some legal research.

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Background Investigation
by: Anonymous

Does a speeding ticket or any of the other problems listed constitute that I am not qualified for a position? The job posting did not stste so. In fact, it stated that a felony in a persons background did not mean disqualification. I was as truthful on the application as I could be and my performance eval stated I was performing to expectation.

This seems to be a pretty cynical view of any person. There is no reason that I was unable to perform in the position, and certainly do not have the problems the stste senators and governer have.



Good point!, but they are elected ..

It's common practice to perform background checks .. on employees, now even credit checks. It's not the driving record that's got them bugged .. it's the perceived dishonesty. It may just be an excuse to eliminate positions because of budget concerns, but it's more likely that if they made an exception in your case .. someone might be able to prove that they do not uniformly enforce their rules.

Cynical? I'm one of the most cynical people I know:)

One of the reasons I never want to be an employee again is because the huge sea monster that gobbled up the company I worked for is one of the three major credit reporting agencies. They wanted the company I worked for because it's main source of money isn't unemployment claims .. it's employment and income verification. They have over 2/3 of all Americans employment records.

What's the easiest way to gain access to payroll databases .. including government agencies?

Give them cheap unemployment claims help if they will give you access to their employment databases.

We have no secrets anymore. None.


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Background Investigation
by: Anonymous

That is what they are saying.


Not being truthful on an application is generally considered misconduct .. because that is what they base their hiring decision on .. and most applications also have disclaimer about pending background checks .. etc.

I suppose you could argue that your lapse in memory about the moving violation was inadvertent, but that's an iffy argument at best.

But I also started to wonder about NV law. Recently, I watched a news piece about speeding tickets that are mailed out when captured at intersections by camera.

Apparently, if you just pay the fine .. they do not remove points from your license .. which I always thought was associated with a "moving violation."

Is it possible that the type of ticket you received isn't considered a moving violation and if your former employer was supposed to pay for it possibly that could explain the lapse in memory.

I may just be grasping at straws, but you just never know what might work.



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