Misuse of the Sex Offender Registry for Hiring has Spooky Consequences
Easy access to online sex offender registries seems like a win for employers who want to make sure the people they hire aren’t listed. Yet in some states, using that information can have scary consequences.In California, for example, all employers must comply with Megan’s Law, whether or not they use a third-party background checking service. Megan’s Law requires convicted sex offenders to register with the state’s registry and then makes that registration information available online to the public.
Sounds great, right? You have free, unrestricted access to 90,000 sex offender records online. But employers likely haven’t read Megan’s Law in its entirety, and therefore may not be aware of the following provision from Cal. PC 290.46(l)(2)(E):
Use of any information from the Megan’s Law Database for purposes relating to any of the following is prohibited:
- Health insurance
- Education, scholarships, or fellowships.
- Housing or accommodations.
- Benefits, privileges, or services provided by any business establishment
That’s right: California law prohibits employers from using sex offender registry data when making employment decisions.
So why do background screeners report this information if their customers can’t use it?
As with any statute, there are exceptions. Megan’s law does have carve-outs for employers to use registry information if:
- They are required to do so by another law
- They are using the information to “protect a person at risk”
A number of online publications will lead you to believe that “person at risk” is defined in 290.45 of the California Penal Code. However, this is not the case. “Person at risk” is not currently defined under the statute, and thus is left open to interpretation. A previous version of the statute defined person at risk as “a person who is or may be exposed to a risk of becoming a victim of a sex offense committed by the offender,” but this is not current law.
Penalties for Misusing Sex Offender Information
Using California sex offender registry information for purposes other than to protect a person at risk or for a prohibited purpose as described above:
“shall make the user liable for the actual damages caused, and any amount that may be determined by a jury or a court, not exceeding three times the amount of actual damages, and not less than $250, plus attorney's fees, exemplary damages, or a civil penalty not exceeding $25,000.” Cal. PC 290.46(l)(4).
While $25,000 may be a drop in the bucket for large corporations with in-house counsel to defend against claims, this penalty can cripple a small to medium sized business.
So what are employers to do when they learn that an applicant or current employee is on the registry?
Classic attorney response: “It depends.”
First, determine if you’re an employer who falls under one of the two exceptions that allow the use and consideration of sex offender registry information for hiring purposes.
1. If you’re required by law or authorized by the California Department of Justice to inquire into sex offender history, you may do so. Businesses that fall under this exception typically include:
- Governmental agencies
- Humane societies
- Public housing authorities
- Adoption agencies
- Financial institutions
- Community care facilities
- Child care centers
Consult California PC 290.46(j)(3) to perform a more comprehensive analysis as to whether you fall under one of these excepted categories.
2. You may also fall under the exception allowing an employer to use registry information in order to protect a person at risk. You’re likely to qualify for the exception if your employees:
- Go into others’ homes to perform services
- Work with the elderly, disabled, or children
To be safe, perform a risk assessment for these applicants or employees and document it. Consider the work history of the applicant or employee, the groups of individuals the applicant will interact with on the job, and evidence of rehabilitation.
If you don’t qualify for the exceptions above, you can’t use sex offender registry information in your hiring decision in California.
Sex Offender Information You Can Consider
But don’t lose hope.
There is no prohibition on using records of conviction from criminal courts when making hiring decisions.
Although you may not be able to use the registry as a factor in your hiring decision, you may still receive and use court records showing convictions for the underlying offenses committed by a registrant.
Keep in mind that you may only use conviction records that are seven years of age or younger in California.
You also may use information you learn directly from the applicant. If the job candidate discloses the sex-offender status, your business should have a trained HR professional who can direct the interviewee to elaborate on the convictions underlying the registration. Make sure to document the information to avoid confusion on the source of the information.
Be careful if your job candidate or your business is located in California. California allows use of sex offender registry information for employment purposes in limited cases only.
Don’t get caught violating Megan’s Law in California. Call your attorney, do some research, document your risk assessments, and reach out to your background screeners to ensure you’re in compliance. At GoodHire, we're always happy to answer your questions.
Just because I’ve used California as an example here, don’t assume you’re out of the woods if you’re located in another state. Several states have enacted some version of Megan’s Law, and prohibitions on use of registry information vary state by state. To ensure compliance, review your specific state’s law prior to denying employment based on a candidate’s presence on the registry.
Employers Be(a)ware! All this month we're highlighting advice on how employers can stay safe from things (read:compliance mistakes) that go bump in the night. Don't miss a post – hit that big green SUBSCRIBE button at the top of the page or follow us on Twitter, LinkedIn, or Facebook.