When an office manager opened an envelope that was left on her desk chair one morning, she found a Web page that had been printed from a Megan’s Law Website. Staring back at her from the paper was the face of one of her administrative employees, a man who delivered mail, made photocopies, and generally helped around the office. According to the Web page, the employee had a conviction from a few years back for indecent assault. The curious manager opened her Web browser, punched a few keystrokes, and surfed to her state’s Megan’s Law Website. She typed in her employee’s name and was presented with an unflattering mug shot of her employee along with a page of general information about his prior conviction. No doubt about it: the employee was a registered sex offender.
The manager’s story illustrates a quandary which many employers face now that most state Megan’s Law Websites celebrate their second birthday. The tricky question for employers is: What action, if any, should they take? Megan’s Law
“Megan's Law” is the common term used to refer to the collection of state laws that require law enforcement authorities to identify sex offenders to the public, largely via the Internet. At least 48 states have developed easily accessible sex offender Internet registries and more than 540,000 individuals were listed in 2006 on Megan’s Law registries.
Not surprisingly, employees react adversely to news that one of their coworkers is a convicted sex offender. Sometimes employees disclose Megan’s Law listings anonymously to their superiors, as in the above scenario. Others take bolder approach and demand that employers take immediate action. Inevitably, pages printed from Megan’s Law Websites are passed around the workplace, fostering gossip and, in some cases, embellishment of the facts. The Safe Workplace
In most states, employers are forced to walk a delicate line between their obligation to provide a safe workplace for employees and their obligation to refrain from considering an employee’s criminal history, except as it relates to suitability for employment. Many states impose limitations on an employer’s ability to arbitrarily take adverse employment action because an employee has a criminal history. First, the Megan’s Law enacted in some states (California being one example) prohibits the use of the state's sex offender registry information for employment purposes. Second, some states limit the degree to which an employer may consider any criminal history.
On the other hand, negligent hiring and negligent retention are common law tort claims recognized by many states. Negligent hiring refers to the hiring of individuals whom the employer knew or should have known were unfit for hiring. Negligent retention refers to retaining employees who were unfit for continued employment. Prehire Due Diligence
Generally, employers should avoid surprises like the one experienced by the office manager described above by exercising proper prehire due diligence with all employees. A good practice is to ask employees on applications whether they have ever been convicted of a felony and, if so, to disclose details. Employers also must train managers to effectively interview job candidates and to conduct background checks. By making sure these practices are carried out, employers can identify applicants whose criminal history potentially may serve as a legitimate basis for rejection. Responding to a Report That an Employee Is a Registered Sexual Offender
An employer who determines that an existing employee is registered as a sexual offender can take several steps to determine whether action is necessary and, if so, protect itself in future litigation.
- Interim Action. Working with legal counsel, the employer initially should confirm preliminary information, then assess the capacity in which the employee works, paying particular attention to items such as the amount and type of exposure to others.
- Independently Gather and Assess Information. With risk addressed in the short term (perhaps by removing the employee from customer contact), the employer should thoroughly investigate the situation while, at the same time, working with legal counsel to determine what legal obligations or limitations exist. At a minimum, the investigation should include the independent review of court records related to the conviction. The employer must keep in mind that it may have obligations under the Fair Credit Reporting Act and/or its state’s similar law as it pursues and obtains criminal history information. The employer also must thoroughly review the employee’s job responsibilities and work environment.
- Take Appropriate Action. With the investigation completed, the employer should take appropriate action. There will be circumstances in which it is patently obvious that the employee is not suitable for employment. Many cases, however, will be closer calls, and the employer will need to err on the side of caution and then be prepared to defend its decision.
The office manager described above determined she could not keep the employee on the payroll because the employee did pose a potential risk. The employee’s union grieved the discharge and the case was headed to arbitration over whether the employer had just cause to discharge the employee. Regardless of the outcome, the employer had taken appropriate steps to protect itself and the people in its workplace.