What does adverse action mean in hiring? Learn the steps employers must follow when taking adverse action, and the rights of job candidates who receive adverse action notices.
Editor’s note: This post was originally published in October 2016. It has been updated with new information.
Can a sex offender pass a background check? Whether employers can use information from the sex offender registry in hiring decisions depends on state laws—and misusing this information can have costly consequences.
Read this article to learn when hiring managers can use sex offender databases for employment decisions and how a background screening company can help you stay in compliance.
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.
While the purpose behind these registries may seem very straightforward, as with many things, the devil is in the details. First, a little history is in order.
What is Megan’s Law?
Megan’s Law was named after a seven-year old rape and murder victim, Megan Kanka, from New Jersey. Soon after the law was passed, the federal government required all states to establish sex offender registries that could be accessed by the public.
The intent behind the law and the registries that have since been established is sound; the practical applications of the registry data, though, can become murky.
Complying with Megan’s Law
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 fair, 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
The bottom line: 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?
Employers Have Legitimate Concerns About Hiring Sex Offenders
There are important exceptions to prohibitions against using sex offender registry data when making employment decisions. Megan’s Law has 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.
Get peace of mind with a background check provider that specializes in compliance at the federal, state and local levels.
Penalties for Misusing Sex Offender Information for Employment
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.”
Differing State Laws Must Guide Decisions & Actions
Just because we’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. And, when in doubt, consult with your legal counsel to:
1. 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.
If you’re required by law or authorized by your state 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 your state’s law to perform a more comprehensive analysis as to whether you fall under one of any exempted categories in your state.
2. Determine if you may also fall under an exception allowing an employer to use registry information in order to protect a person at risk. If your state has such an exception, you’re likely to qualify 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.
Depending on your state, you may not be able to use sex offender registry information in your employment decision unless you qualify for an exception such as the ones outlined above.
Sex Offender Information You Can Consider
It’s important to know that 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 sex offender registry as a factor in your hiring decision, you may still receive and use court records showing convictions for the underlying offense(s) committed by a registrant.
In most states, felonies and misdemeanor conviction records may be reported indefinitely; however, depending on the state where the candidate lives or works, records may be restricted to seven or 10 years. For example, in California you may only use conviction records that are seven years of age or younger.
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 about how you use the sex offender registry for employment and be sure you are complying with the applicable state laws that impact your decisions. As we’ve noted, California, for instance, allows use of sex offender registry information for employment purposes in limited cases only.
Don’t get caught violating Megan’s Law. Call your attorney, do some research, document your risk assessments, and reach out to your background screener to ensure you’re in compliance.
At GoodHire, we’re always happy to answer your questions.
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The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.