Will Current Job Know Once You Register Sex Offender

Can a sexual activity offender pass a background check? Whether employers tin use information from the sex activity offender registry in hiring decisions depends on state laws—and misusing this information tin can have costly consequences.

Read this commodity to larn when hiring managers can apply sex offender databases for employment decisions and how a background screening company tin can help you stay in compliance.

Easy access to online sex offender registries seems similar a win for employers who want to brand sure the people they rent 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. Outset, a niggling history is in order.

What is Megan's Constabulary?

Megan's Police was named after a seven-year onetime rape and murder victim, Megan Kanka, from New Bailiwick of jersey. Soon after the law was passed, the federal government required all states to establish sexual activity offender registries that could be accessed by the public.

The intent behind the constabulary and the registries that accept 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'due south Law, whether or not they utilise a third-party groundwork checking service. Megan's Law requires convicted sex activity offenders to annals with the state's registry so makes that registration data available online to the public.

Sounds fair, right? Y'all take free, unrestricted access to ninety,000 sex offender records online. But employers likely haven't read Megan'due south Constabulary in its entirety, and therefore may not be enlightened of the following provision from Cal. PC 290.46(l)(ii)(E):

Use of any information from the Megan'southward Law Database for purposes relating to any of the following is prohibited:

Health insurance
Insurance
Loans
Credit
Employment
Education, scholarships, or fellowships.
Housing or accommodations.
Benefits, privileges, or services provided by whatever business institution

The bottom line: California law prohibits employers from using sex offender registry information when making employment decisions.

So why do background screeners report this information if their customers can't use information technology?

Employers Have Legitimate Concerns About Hiring Sex Offenders

There are important exceptions to prohibitions against using sex activity offender registry data when making employment decisions. Megan'due south Law has carve-outs for employers to apply registry data if:

They are required to practise so by another law
They are using the information to "protect a person at risk"

A number of online publications volition 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 take chances" is not currently defined under the statute, and thus is left open to interpretation. A previous version of the statute defined person at hazard as "a person who is or may exist exposed to a gamble of condign a victim of a sexual activity offense committed by the offender," simply this is not current police force.

Go peace of mind with a background bank check provider that specializes in compliance at the federal, state and local levels.

Penalties for Misusing Sex Offender Data for Employment

Using California sex activity offender registry information for purposes other than to protect a person at risk or for a prohibited purpose as described in a higher place:

"shall brand the user liable for the actual damages caused, and any amount that may exist determined past a jury or a court, not exceeding three times the corporeality of bodily damages, and non less than $250, plus chaser'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 saucepan for big corporations with in-house counsel to defend against claims, this penalty can cripple a pocket-size to medium-sized business.

And then what are employers to practise when they learn that an applicant or electric current employee is on the registry?

Classic attorney response: "Information technology depends."

Differing State Laws Must Guide Decisions & Deportment

Simply because we've used California every bit an instance here, don't presume you're out of the woods if you lot're located in some other country. Several states accept enacted some version of Megan's Law, and prohibitions on use of registry information vary state past state. To ensure compliance, review your specific state'south 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 activity offender registry information for hiring purposes.

If you're required by constabulary or authorized by your country 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 regime
Adoption agencies
Financial institutions
Customs care facilities
Child care centers

Consult your state'southward law to perform a more comprehensive analysis as to whether you fall nether 1 of any exempted categories in your state.

2. Determine if you may also fall under an exception allowing an employer to use registry data in order to protect a person at risk. If your state has such an exception, you lot're likely to qualify if your employees:

Go into others' homes to perform services
Piece of work with the elderly, disabled, or children

To be safe, perform a risk assessment for these applicants or employees and document it. Consider the piece of work history of the applicant or employee, the groups of individuals the bidder will interact with on the job, and testify of rehabilitation.

Depending on your country, you may non 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 Y'all Can Consider

Information technology'south important to know that in that location is no prohibition on using records of conviction from criminal courts when making hiring decisions.

Although you may not be able to utilize the sex offender registry equally a factor in your hiring decision, y'all may still receive and use court records showing convictions for the underlying crime(s) committed by a registrant.

In most states, felonies and misdemeanor conviction records may exist reported indefinitely; all the same, depending on the state where the candidate lives or works, records may be restricted to seven or ten years. For instance, in California you lot may just use conviction records that are vii years of historic period or younger.

Yous also may employ information you learn direct from the bidder. If the job candidate discloses the sex-offender condition, your concern should take a trained 60 minutes professional who tin 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.

Bottom Line

Be conscientious about how you lot use the sex offender registry for employment and be sure you are complying with the applicable state laws that impact your decisions. Equally nosotros've noted, California, for instance, allows employ of sexual activity offender registry data for employment purposes in limited cases just.

Don't get caught violating Megan's Police force. Telephone call your attorney, do some research, certificate your risk assessments, and reach out to your background screener to ensure you lot're in compliance.

At GoodHire, we're always happy to answer your questions.

A Sex Offender Registry List search is included with our Basic, Standard, and Premium packages. Get STARTED

GoodHire follows FCRA, ban the box, and EEOC compliance laws

Disclaimer

The resources provided here are for educational purposes just and do not constitute legal advice. We suggest y'all to consult your own counsel if you lot have legal questions related to your specific practices and compliance with applicative laws.

Almost the Author

Elizabeth McLean is GoodHire's General Counsel, an FCRA-compliance attorney and skillful in the groundwork screening legal mural. She monitors all things FCRA and EEOC. That means she follows new legislation and courtroom decisions and advises the company on processes that follow compliance best practices.