Since New Jersey led the way in 1994, many states have enacted so-called Megan’s Laws, which establish public online registries of individuals who have been convicted of a sex-based offense. California’s version of Megan’s Law is codified as California Penal Code § 290.46.
Section 290.46 requires all convicted sex offenders to register with the state’s sex-offender Registry. California then publishes online the names, identifying features, and, in some cases, addresses of the 83,000 registrants—all for the world to see with just a few mouse-clicks.
Why Does Megan’s Law Concern California Employers?
A curious reader might now feel the urge to visit the Megan’s Law website to test a suspicion that some acquaintances appear on the list (indeed, your Cal Pecs blog author succumbed to that very temptation while preparing this article). But employers, in particular, should exercise caution when pursuing such a curiosity.
California employers usually may not use information from the Registry to refuse to hire, fire, or demote an employee or potential employee.
- Section 290.46 expressly prohibits employers from using Registry information for employment purposes, except as otherwise provided by statute or to “protect a person at risk.”
- Misuse of Registry information exposes employers to potential litigation and damages, fines, and attorneys’ fees.
Are There Any Exceptions?
The statute permits employers to use Registry information “to protect a person at risk.” Cal. Pen. Code § 290.46. But this vague term generally means someone who “is or may be exposed to a risk of becoming a victim of sex offense committed by the offender.” Cal. Pen. Code § 290.45(a)(8). The “person at risk” exception could protect some employers (e.g., day care centers, hospitals, senior centers, etc.) from liability if they use the Registry to evaluate the fitness of their employees or prospective employees. But most people—employees as well as patrons—are not obvious “person[s] at risk.” Employers, therefore, should not assume that this exception covers Registry-based adverse employment actions. It likely does not.
In addition, some employers are subject to laws that prohibit them from hiring convicted sex offenders altogether. Section 45122.1 of the Education Code, for example, forbids schools from hiring persons convicted of sex offenses (and other serious crimes). Thus, some employers have statutory protection from liability if they use the Registry as a basis for an adverse employment action.
Why Can’t I Use Megan’s Law To Keep Offenders Out Of My Workplace?
Section 290.46 expresses California’s public policy that seeks to protect offenders from “additional punishment” or “retribution” once they have paid their debt to society and have resumed their place among their fellow citizens. California is “peculiar” on this front—most other states’ Megan’s Laws do not include similar restrictions on the use of the Registry in employment contexts.
This should not come as a surprise. Preventing someone from working based solely on their criminal history is coming under increased scrutiny in California, as in many other jurisdictions. Indeed, “ban the box” movements, which demand that employers not ask prospective employees about past criminal convictions, are gaining momentum throughout California and nationally. State and local government employers in California may no longer ask for criminal record information on job applications, and as of August 2015, San Francisco private employers of 20 or more employees cannot inquire about criminal history either. (See our earlier post here.)
So, the moral of the story is . . . unless you fall under an exception to Section 290.46, or your workplace contains obvious “persons at risk,” you need to treat any person found on the Megan’s Law Registry just as you would any other employee or applicant.
Workplace Solution: Employers must balance concerns about workplace safety with the twin public policy goals of (i) not punishing someone twice for the same crime and (ii) ensuring that everyone has a chance to earn a living, regardless of past convictions.
If you have Megan’s Law-driven concerns about a current or prospective employee, refrain from making a hasty decision. As always, don’t hesitate to contact your Seyfarth lawyer if you are facing this predicament and need advice on how to proceed.