What is the Effect
of the New Megan's Law Web Site on the Workplace?
Beginning
this year, the California Department of Justice has an Internet website
that provides access to information on persons required to register in California as sex
offenders. This increased access to information may result in an employer's
discovery that one of its employees is in fact a registered sex offender.
What
action can an employer take in this situation? As this article will
discuss, employers are prohibited from using this information
for employment purposes except as otherwise provided by statute or "to
protect a person at risk." However, employers do have some options
available to them.
What is Meagan's Law?
Megan's
law is named for 7- year old Megan Kanka of New Jersey who was
raped and killed by a convicted child molester. The offender lived right across
the street from the Kanka residence; however, the
local police department was prohibited from disclosing the presence of this
child molester because at the time the law did not allow the release of sex
offender information to the public.
In
California,
sex offenders have been required to register with their local law
enforcement agencies since the late 1940's. However, this information was
not available to the public.
The
law was changed to permit the release of this information to the public and
in May of 1996, President Clinton signed the law, named Megan's law in
remembrance of Megan Kanka.
California also
established its version of Megan's law and a database of sex offenders in
1996.
Previous Law Provided Less
Access to Information
Until
this year, the sex offender database was not easily accessible for most
Californians. The California Department of Justice was required to make a CD-ROM listing information on serious and high-risk
sex offenders available to the public at local police stations.
An
individual who wanted the information would have to go to the local police
and view a CD-ROM, which would show a map with street names and location of
each offender. Pictures and specific information as to past offenses were
generally not available, although some local police departments would
provide the information after making a special appointment.
A
"900 line" service was also available which allowed individuals
to call a telephone number for information about sex offenders. The call
cost $10 per call for inquires on up to two individuals. However, name and
exact date of birth or Social Security Number or driver's license number
was necessary.
What Does the New Internet
Access Law Provides?
The
new California
law (California Penal Code section 290.46) provides the public with
Internet access to detailed information on registered sex offenders,
including pictures. The California Attorney General sponsored the law.
As
a result of the new law establishing an Internet website, anyone with a
personal computer and access to the Internet can obtain information on more
than 63,000 persons required to register in California as sex offenders.
Specific
home addresses are displayed for more than 33,500 of these offenders. An additional
30,500 persons are included on the site with listing by ZIP code, city, and
county.
The
Megan's law website can be found at http://meganslaw.ca.gov/.
Once an individual has read and acknowledged the disclaimer, he/she can
search the database by a sex offender's specific name, obtain ZIP code and
city/county listings, obtain detailed personal profile information on each
registrant, and use the map to search a neighborhood anywhere throughout the
state.
Prohibition Against Use of Website Information By Employers
The
new law specifically states that the use of information disclosed on the
website for purposes relating to employment is prohibited. (California
Penal Code section 289.46(j)(2).)
The
use of information disclosed on the website is also prohibited for purposes
relating to health insurance, insurance, loans, credit, education, housing,
or benefits, privileges or services provided by any business establishment.
An
exception is made allowing for authorized use of the website information
"only to protect a person at risk." A "person at risk"
is defined as a person who "is or may be exposed to a risk of becoming
a victim of a sex offense committed by the offender." Certain
employers required by law to have access to and use of sex offender
registry information are also excepted from this
prohibition.
Clearly,
this prohibition would cause frustration for employers. However, the
prohibition is actually the same prohibition as found in the underlying
Megan's law statute. Penal Code section 290.4(e) also states that use of
the information from the Megan's law database for employment purposes is
prohibited except to protect a person at risk.
The
reason behind this prohibition on the use of information was to avoid
inflicting additional punishment against persons already convicted and
violating constitutional law against retroactive punishment.
Employers Do Have Options
While
the prohibition against use of the website information is concerning, employers
do have options when it comes to this issue. Employers can, under certain
circumstances, still use the criminal information if properly obtained from
another source or if the exception to the prohibition applies. Caution,
however, is still warranted.
First,
all employers should ask whether the applicant was convicted of a felony on
their employment applications. Secondly, employers should conduct criminal
background checks on employees. Employers who do so are required to comply
with federal and state laws regarding fair credit reporting. For instance,
employers who conduct in-house background checks by obtaining the public
records, including criminal records, of applicants must provide the
investigated individual with a copy of the public record within seven (7)
days of receipt of the information unless the applicant has waived his/her
right to receive that information. If you deny employment based on the
criminal record, you must provide a copy of the public record regardless of
whether the consumer waived his or her right to receive it.
However,
simply because the employer obtained the information about the conviction
from a source other than the website does not mean they should
automatically fire the employee or refuse to hire an applicant. The employer
should determine whether there is a legitimate business purpose for
terminating the offender or refusing to hire the applicant. Generally,
automatic termination of employees or denial of applications because of
felony convictions is not allowed because it may have a disparate impact on
a protected class; instead a legitimate business reason for the termination
must be shown.
California employers
who only learn of the criminal conviction from the website can also use the
information if they determine that it is necessary "to protect a
person at risk" – the exception under the law.
Sexual
offenders have a high rate of recidivism. Unless the offender works in an
environment with rare contact with other employees or the public, a
termination may be justified. In fact, retaining the employee may open
the employer up to claims of negligent retention if the offender commits a
crime against another employee or a member of the public while working.
The
employer will need to evaluate the employee or applicant's contact with
children or others who may be at risk. If the sexual offender is a current
employee, the employer will need to look at length of employment, history
of performance and interaction with co-workers and whether there is a risk
to employees or members of the public the sexual offender comes into
contact with.
Tips for Employers
- Ask about criminal
convictions on employment applications.
- Properly conduct
criminal background checks.
Assess
the risk to employees and the public of hiring or retaining an employee who
is a convicted sexual offender. Consult with labor and employment counsel
prior to
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