Oct 19

Indecent Exposure: Sex Offenders on the Job

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Perverts aren’t popular. That’s why Bill Cosby went from being America’s Favorite Dad to America’s Most Wanted overnight. You might therefore be shocked to learn that firing or refusing to hire one of California’s 83,000 registered sex offenders (RSOs) is illegal in certain cases. Ironically, the statute governing the “Megan’s Law” online sex offender registry prohibits anyone from using the registry for employment purposes. The penalties for using the registry for employment purposes are nightmarish: punitive damages, a civil penalty of up to $25,000, and a mandatory award of attorney’s fees and costs to a prevailing RSO.

Yet an employer can be liable for negligently hiring or retaining an RSO if the employer knows or should know the RSO poses a particular risk of harm to others. Talk about a catch-22. Fortunately, there’s more than one way to skin a cat, and the Megan’s Law registry isn’t the only way to run a criminal background check. Employers can always search public records and decide whether to hire or fire based on whatever information they discover during their investigation. Even then, however, they have a duty to notify a job applicant or employee of any adverse action they might take as a result of their investigation.

No Child (Molester) Left Behind: Discrimination Against Sex Offenders Can Violate Megan’s Law

In effect, Megan’s Law makes RSOs a protected class. The law even authorizes a court to order “any user” who unlawfully uses the registry for employment purposes to pay an RSO a $25,000 civil penalty – a form of compensation that other protected classes (e.g., persons with disabilities) wouldn’t be entitled to for employment discrimination under California’s Fair Employment & Housing Act (FEHA). Meanwhile, California law doesn’t prohibit an employer from discriminating against a job applicant because he’s unemployed, short, or overweight or speaks with a Southern accent. Talk about a perverse result.

Fortunately, Megan’s Law allows employers to use the registry “to protect a person at risk.”[1] The law defines a “person at risk” as anyone who “is or may be exposed to a risk of becoming a victim of a sex offense” by the RSO in question.[2] That isn’t a useful definition. Presumably, anyone on the employer’s premises (not just an employee) who fits the profile of one of the RSO’s victims is a “person at risk.” For example, an employer who employs adult females or has adult female customers could fire or refuse to hire an RSO if the employer finds him in the registry and learns that he was convicted of rape.

Megan’s Law doesn’t affect an employer’s duty to run background checks on certain job applicants.[3] For example, an employer can run a background check on anyone who applies for a position in which he would have supervisory or disciplinary power over a minor or any person under his care,[4] a position at a child care facility,[5] or a position in which he would have regular access to patients at a health care facility.[6] Megan’s Law permits employers to act on registry information about such job applicants. Similarly, a school district, which can’t employ anyone who has been convicted of a “violent or serious felony,” should be able to act on registry information.

The penalties for using the registry “purposes…relating to [e]mployment” are extensive. Megan’s Law provides that anyone’s misuse of the registry, including using information in the registry for employment purposes, “shall make the user liable for the actual damages, and any amount…not exceeding three times the amount of actual damage, and not less than [$250], and attorney’s fees, exemplary damages, or a civil penalty not exceeding [$25,000].”[7] The statute isn’t a model of legislative clarity. The disjunctive language of the statute suggests that a plaintiff is entitled to actual and statutory damages but must elect among attorney’s fees, punitive damages, or a civil penalty.

To Fire a Predator: Employers Can Search “Public Records” Without Violating Megan’s Law

In California, an employer can be liable for negligently hiring or retaining an employee if the employer knows or should know the employee poses a particular risk of harm to others, and the particular harm occurs.[8] The Ninth Circuit and California courts have never held a California employer liable for negligent hiring or retention after failing to run a criminal background check. But the Fourth Circuit has.[9] California employers in particular have little excuse not to run criminal background checks: the California Legislature has declared that sex offenders “pose a potentially high risk of committing further sex offenses after release from incarceration or commitment.”[10]

Luckily, the Megan’s Law registry is hardly the only way to find out if someone is an RSO. Employers can always search public records documenting an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment.[11] Megan’s Law doesn’t prohibit an employer from discriminating against a sex offender based on a review of such non-registry information. Employers just need to remember that the Investigative Consumer Reporting Agencies Act (ICRAA) requires an employer to provide the subject of the public records search with a copy of any public record within seven days after the employer receives the record or a summary of the record.[12]

ICRRA requires all job application forms to include a check box that permits a job applicant to waive his right to receive a copy of any public record.[13] The waiver only lasts until the employer takes adverse action against the job applicant because a public records search has uncovered information about his character, general reputation, personal characteristics, or mode of living.[14] Even if a job applicant doesn’t check the box, an employer may withhold the record beyond the seven-day deadline if he “suspects” the job applicant of wrongdoing.[15] The employer must still give him a copy of the record within a reasonable time after the investigation ends.[16]

Some public records are off-limits. The Fair Chance Employment Act (FCEA) generally prohibits an employer from “inquiring into” an arrest that didn’t result in conviction or a conviction that a court has dismissed or sealed.[17] Likewise, the FCEA generally prohibits an employer from using a record of such an arrest or conviction as a “factor” in deciding whether to hire, fire, or promote.[18] The FCEA imposes huge penalties for violations: (1) actual damages or $200, whichever is greater, for any violation; or (2) three times actual damages or $500, whichever is greater, for an intentional violation.[19] In either case, a prevailing plaintiff is entitled attorney’s fees and costs.

References

[1] Pen. Code §290.46.

[2] Pen. Code §290.45(a)(8).

[3] Pen. Code §290.46(l)(3).

[4] Pen. Code §11105.3.

[5] H&S Code §1596.871.

[6] Lab. Code §432.7.

[7] Pen. Code §290.46 (l)(2)(E), (4)(A).

[8] Doe v. Capital Cities, 50 Cal.App.4th 1038, 1054-1055 (1996).

[9] See, e.g., Blair v. Defender Services, Inc., 386 F.3d 623, 629 (4th Cir. 2004) (denying summary judgment on negligent hiring claim because jury could find employer was negligent for failing to run a criminal background check of an employee).

[10] Pen. Code §290.03.

[11] Civ. Code §1786.53(a)(3).

[12] Civ. Code §1786.53(b)(1).

[13] Civ. Code §1786.53(b)(2).

[14] Civ. Code §1786.53(b)(4).

[15] Civ. Code §1786.53(b)(3).

[16] Moran v. Murtaugh, Miller, Meyer & Nelson, 24 Cal.Rptr.3d 275 (2005).

[17] Lab. Code §432.7(a).

[18] Id.

[19] Lab. Code §432.7(c).

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.