Can A Registered Sex Offender Become A Licensed Massage Therapist In Alabama?

Can a sexual practice offender pass a groundwork check? Whether employers can use data from the sex offender registry in hiring decisions depends on country laws—and misusing this information can have costly consequences.

Read this commodity to learn when hiring managers tin can use sexual practice offender databases for employment decisions and how a background screening company can assist you stay in compliance.

Like shooting fish in a barrel access to online sexual activity offender registries seems similar a win for employers who want to brand sure the people they hire aren't listed. Nonetheless 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. Commencement, a little history is in order.

What is Megan'due south Police force?

Megan's Law was named afterward a seven-year quondam rape and murder victim, Megan Kanka, from New Jersey. Soon after the law was passed, the federal government required all states to constitute sex offender registries that could be accessed by the public.

The intent behind the constabulary and the registries that have since been established is audio; 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 employ a third-party background checking service. Megan's Law requires convicted sex offenders to register with the state'southward registry and so makes that registration information available online to the public.

Sounds fair, right? You have free, unrestricted access to 90,000 sex activity offender records online. But employers likely haven't read Megan's Law in its entirety, and therefore may not be aware of the post-obit provision from Cal. PC 290.46(l)(2)(Due east):

Use of any information from the Megan's Constabulary Database for purposes relating to whatever of the following is prohibited:

Health insurance
Insurance
Loans
Credit
Employment
Education, scholarships, or fellowships.
Housing or accommodations.
Benefits, privileges, or services provided past whatsoever business establishment

The bottom line: California law prohibits employers from using sexual activity offender registry data when making employment decisions.

Then why practice groundwork screeners report this data if their customers tin 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 cleave-outs for employers to apply registry data if:

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

A number of online publications will lead you lot to believe that "person at gamble" is defined in 290.45 of the California Penal Lawmaking. Notwithstanding, this is not the case. "Person at risk" is non 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 take chances of condign a victim of a sex offense committed by the offender," only 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 Data for Employment

Using California sex offender registry information for purposes other than to protect a person at chance or for a prohibited purpose as described higher up:

"shall make the user liable for the actual damages caused, and whatsoever corporeality that may be determined by a jury or a courtroom, not exceeding three times the corporeality of actual damages, and not less than $250, plus chaser'southward fees, exemplary damages, or a ceremonious penalisation not exceeding $25,000."Cal. PC 290.46(l)(four).

While $25,000 may be a driblet in the saucepan for large corporations with in-house counsel to defend against claims, this penalty tin cripple a pocket-sized to medium-sized concern.

So what are employers to do when they acquire that an applicant or current employee is on the registry?

Classic attorney response: "Information technology depends."

Differing Country 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 some other state. Several states accept enacted some version of Megan's Law, and prohibitions on use of registry information vary state by state. To ensure compliance, review your specific land's police force prior to denying employment based on a candidate'south presence on the registry. And, when in dubiety, consult with your legal counsel to:

1. Determine if yous're an employer who falls under i of the ii exceptions that permit the utilize and consideration of sex activity offender registry information for hiring purposes.

If you're required by police or authorized by your state department of justice to inquire into sex activity offender history, y'all may exercise 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 land'due south law to perform a more comprehensive analysis as to whether you fall under one of whatsoever exempted categories in your state.

2. Determine if you may also fall under an exception allowing an employer to utilise registry data in society to protect a person at risk. If your state has such an exception, y'all're probable 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 bidder or employee, the groups of individuals the applicant will collaborate with on the job, and evidence of rehabilitation.

Depending on your state, you may non be able to utilise sexual practice offender registry information in your employment decision unless yous qualify for an exception such as the ones outlined above.

Sexual activity Offender Information Y'all Can Consider

It'southward important to know that there is no prohibition on using records of conviction from criminal courts when making hiring decisions.

Although you lot may not exist able to use the sexual practice offender registry as a factor in your hiring decision, yous may however 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; nevertheless, depending on the state where the candidate lives or works, records may be restricted to seven or x years. For example, in California you may only use conviction records that are vii years of age or younger.

Y'all also may utilize data y'all larn directly from the applicant. If the job candidate discloses the sexual activity-offender status, your business organisation should have a trained HR professional who tin straight the interviewee to elaborate on the convictions underlying the registration. Make sure to document the data to avoid confusion on the source of the information.

Bottom Line

Be conscientious about how y'all utilize 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 employ of sex offender registry information for employment purposes in limited cases merely.

Don't get caught violating Megan'due south Law. Call your chaser, practise some inquiry, document your risk assessments, and reach out to your background screener to ensure y'all're in compliance.

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

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Disclaimer

The resources provided here are for educational purposes only and do not plant legal advice. We advise yous to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.

Almost the Author

Elizabeth McLean is GoodHire'southward General Counsel, an FCRA-compliance attorney and expert in the background screening legal landscape. She monitors all things FCRA and EEOC. That means she follows new legislation and court decisions and advises the company on processes that follow compliance all-time practices.