Sex Offenders on the Job: The Megan’s Law Database Loophole
We can't use sex offender database information on job applicants.
Posted Oct 11, 2011
Anyone with access to a computer can go online to the "Megan's Law" sex offender web site for his or her state. These databases were created with the intention of helping people identify those men (and a few women) who have been convicted of certain sexually related crimes. Usually, as a condition of their probation or parole, they agree to register as a sex offender. These lists used to be accessible only at a computer housed at a police or sheriff's station; now you can view it online from your home.
Due to the obsessional nature of their behavior, the fear of sexual recidivism for previous sex offenders is constant. Whether it's true that "the best predictor of future sexually violent behavior is past sexually violent behavior" is always part of a strong debate between victims advocates, mental health clinicians who treat sex offenders, the police, probation officers and parole agents, and worried communities.
A 2003 Bureau of Justice Statistics study showed 43 percent of convicted sex offenders were arrested for a serious crime within three years of their initial release. Sex offender treatment advocates (a title that must raise eyebrows when seen on a business card) say that the BJS study does not say "serious sexual crimes," only "serious crimes." And some criminologists agree, saying most sex offenders, who may have a hard time reintegrating into society after coping with the prison culture, do re-offend, but not always for sex offenses.
All states have language that says it's prohibited to use the information disclosed on a Megan's Law sex offender web site for "purposes relating to health insurance, insurance, loans, credit, employment, education, housing, or benefits, privileges, or services, provided by any business establishment."
But how about if we deleted the word "employment" from these state statutes, so employers can get back the power to hire or not, and protect their firms as they see fit?
How can you make a safe hiring decision if you don't know if a job applicant is on a legally accessed sex offender database? What is the purpose of knowing in the first place? Let's ask our legislators to have the guts to allow concerned HR professionals, hiring managers, and small and large business owners to use the knowledge of an applicant on the Megan's Law database as criteria for not hiring that individual if they so choose.
If we continue as it stands? As one labor law attorney has put it, "We will have made convicted sex offenders a 'protected class.'"
As one example, according to California law, the statute says that authorized users can access the web site's information "only to protect a person at risk, who is defined by Penal Code section 290.45(a)(8) as a person who 'is or may be exposed to a risk of becoming a victim of a sex offense committed by the offender.' " We can't predict the future; we can only assess dangerousness. So how do we know who will "be exposed to a risk of becoming a victim" of an offender who has already proven, at least once, incredibly poor judgment when it comes to sexual boundaries?
Shouldn't a business owner or manager have the right to say to an applicant, "Based on the fact that you are on a verified database for convicted sexual offenders, we want to be able to use that legally obtained information, which we also verified by hiring a reputable third-party background check company, to either hire you or not hire you?" (Before the civil libertarians rise, we already know that we can only ask an applicant about criminal convictions, not arrests, during the interview process.)
If the company owners or operators think the applicant poses no risk, based on the job duties, then they can hire him. But if they do have concerns, why can't they pass on him and say, "Thanks, but no thanks?" Because it's currently civilly wrong, and subject to a tort suit, to do so.
Let's say a man works as a maintenance employee at an apartment complex. Due to his previous sex crime conviction, he was put on probation and labeled as a "registered sex offender." By law, he must register yearly as a sex offender in the county where he lives, for life.
Let's say there was no background check done on him or he was never asked and/or didn't tell. By all accounts, he is a good employee, with no performance or behavioral problems.
A resident in the complex gets curious about him and discovers him on that state's Megan's Law database. Afraid for herself and her kids, she reports her findings to the management company of the apartment complex. What should they do? They cannot fire him for not revealing he is a sex offender registrant, unless he lied on his application (and even then he may still sue). They cannot fire him for being a sex offender registrant, since he's only required to register, which he did. They can only let him go for behavior or performance reasons, and usually only after giving him a performance improvement plan, progressive discipline, and more than one chance to save his job.
Company lawyers would advise them to monitor his work performance, watch his behavior around co-workers and residents, and keep a weather eye out for any signs of problems. That's fine, right up until he sexually assaults someone on the property, and then it's too late.
If we fire him, thinks the management company, he could sue us for wrongful termination. If we keep him and he sexually assaults someone in the apartment complex, we could get sued for negligent hiring or for continuing to employ him, even though we knew his sex offender background put him near women or children. The management company is caught in the familiar legal realm known as "damned if we do, damned if we don't."
Some legislators, lawyers, and prisoner advocates say that sex offenders who have served their sentences should not continue to be judged, ostracized, or prevented from making a living. Okay. But can't we ask our state legislators to give our employers back the discretion they need to make a decision that benefits the many, instead of the few?
Dr. Steve Albrecht, PHR, CPP, is a San Diego-based speaker and author on high-risk HR and security issues. He worked for the San Diego Police Department for 15 years. He can be reached at firstname.lastname@example.org.