Since the launch of the Megan’s Law website in December 2004, many California parents have visited the website at http://www.meganslaw.ca.gov to determine whether any registered sex offenders live in their neighborhood. I did, and I found that 21 registered sex offenders live in the Orange County beach town where we live. Many California employers have also visited the Megan’s Law website, attempting to determine if job applicants or employees are listed on it. The employer’s purpose in almost all cases is to ensure proper screening of employees, for the safety of customers and co-workers. Many employers are unaware, however, that despite their good intentions, they expose themselves to substantial civil liability if they use information found on the website to make employment decisions. This article explains the reason for this exposure and recommends steps employers can take to limit their liability. Background of Megan’s Law New Jersey adopted the first Megan’s Law in 1994, named after Megan Kanka. Megan was seven years old when a repeat violent sexual offender who lived across the street kidnapped, raped, and murdered her. Megan’s parents made the compelling argument that they should have been warned a violent sexual offender lived across the street, so that they could have told Megan to avoid him and taken other preventative measures. New Jersey passed legislation requiring law enforcement agencies to notify the public of convicted sex offenders living in their communities. At the federal level, Congress passed its version of Megan’s Law in 1996, requiring all states to develop procedures to notify the public of sex offenders living in their communities. Today, all states have passed some form of “Megan’s Law,” which is an informal name used to refer to laws designed to warn the public about the residence location of registered sex offenders. Since 1947, convicted sex offenders in California have been required to register with local law enforcement agencies. In 1994, California enacted laws establishing a “900” toll line to provide information regarding sex offenders. With Congress’ enactment of Megan’s Law, many states began posting information about sex offenders online, although for years California did not follow suit. Only in 2004 did California pass legislation, Penal Code Section 290.46, which required the California Department of Justice to establish and maintain a website disclosing information to the public about registered sex offenders, including their names, last known addresses, prior offenses, and a photo. Today, California’s Megan’s Law website contains information on more than 63,000 persons required to register in California as sex offenders. Specific home addresses are displayed on more than 33,500 of these individuals. The remaining offenders are generally included on the site with listing by zip code, city, and county. After acknowledging the Department of Justice’s disclaimer regarding the content and proper uses of the site, visitors can search for offenders by name, address, city, zip code, and county, as well as proximity to certain parks and schools. Caution for Employers California’s Megan’s Law explicitly prohibits use of any information on the website for purposes relating to health insurance, insurance, loans, credit, employment, education, housing or accommodations, or benefits, privileges, or services provided by any business establishment. This restriction applies to all employers, except in limited industries where employers are required by law or authorized to request criminal histories from the Department of Justice. For employers subject to this law, the only exception to the prohibition against using the information for employment purposes is that a person may use information on the website “to protect a person at risk.” This term was previously defined elsewhere in the Penal Code as a person (regardless of age or gender) who “is or may be exposed to a risk of becoming a victim of a sex offense committed by the offender.” The statute was subsequently amended, however, and this definition was dropped. The upshot is that employers cannot deny a job applicant employment or terminate an employee because his or her name is profiled on the website, unless the purpose of the employment action is to “protect a person at risk.” An employer who violates this prohibition is liable to the sex offender for three times actual damages, as well as attorneys’ fees, punitive damages, and a civil penalty not exceeding $25,000. Lawsuits by sex offenders under Megan’s Law have been few, but are likely to increase as sex offenders gain greater awareness of their rights. Last year, one Orange County attorney filed six separate lawsuits under Megan’s Law in Orange and Los Angeles County Superior Courts on behalf of six registered sex offenders. In one of the lawsuits, the plaintiff, a truck driver, alleged that his employer, a trucking company, wrongfully terminated him after discovering his name on the website. In the other case, the plaintiff, a customer service representative, alleged that her employer, a national insurance company, wrongfully terminated her after discovering her name on the website. The key issue in these and other cases of this kind will likely be whether the plaintiffs’ terminations were necessary to “protect a person at risk.” No published appellate decisions have yet analyzed when employers can take an adverse employment action against a sex offender to protect a person at risk. Clearly, though, some employers will have a better argument than others. For example, a child day care center may have a better chance of prevailing on this defense than an asphalt paving company. Steps Employers Can Take to Minimize Risk This sex offender protection law places employers in a legal quandary. On the one hand, employers reasonably fear that if they employ a registered sex offender, and he or she offends while on the job, the victim may sue the employer for negligent hiring or supervision. On the other hand, employers reasonably fear that if they terminate an employee after discovering his or her name on the website, the employee will sue them. Whether the termination is necessary to “protect a person at risk” is fact-driven and subjective, and many cases could be subject to disagreement. Employers can take steps to avoid this risk. First, employers can conduct criminal background checks of job applicants and employees through public records and with the help of investigative agencies. Information regarding sex offenses obtained outside of the Megan’s Law website generally can be used for employment purposes. An unfortunate limitation of background checks, however, is that employers cannot obtain information regarding criminal convictions more than seven years old. Employers can also ask job applicants to self-report sex offenses and other criminal convictions on their employment applications (within the parameters of permissible questions under the Labor Code), and employers can ask questions about sex offenses during the interview process. Further, employers can ask about criminal convictions when checking references. By relying on these methods, employers can obtain information regarding sex offense history and avoid the Megan’s Law website, which carries with it such great risks for employers. Of course, circumstances do arise when an employer learns that an employee is listed on the website, for example when a different employee brings it to the employer’s attention. When that happens, the employer must ask whether the greater risk is keeping the employee on or taking some form of adverse employment action. The employer should consider such things as the nature of its business, how the employee’s sex offense history presents risks to co-workers and customers, and how long the employee has worked for the employer without incident. The employer should also consider meeting with the applicant or employee and asking about his offense and the nature of his rehabilitation. Consulting experienced legal counsel is also prudent. The Megan’s Law website has demonstrated itself to be an effective tool to inform citizens about registered sex offenders living in their midst. It is generally not an effective tool, however, to make employment decisions, and employers should exercise great care in making any decisions based on information learned from the website.
