What Are the Sex Offender Employment Laws and Are Employers Using It For Hiring?
The sex offender registry is a database of information where individuals are able to find and track sex offenders in the community. This information is usually available to the public, including the names and addresses of convicted sex offenders, in order to protect citizens by keeping them informed. Information that needs to be registered as well as what information can be seen by the public all varies from jurisdiction to jurisdiction.
When it comes to adding a new employee, negligent hiring can be an issue, should an employer hire an individual with a sex offender past and a situation occurs putting other employees or customers at risk. So, what are the sex offender employment laws and restrictions? Keep reading to find out.
Sex Offender Employment Laws
If an individual has committed a sex crime, they might have to register as a sex offender, with sex crimes being considered as some of the most serious within the criminal justice system.
Different states have specific laws when it comes to what constitutes a sex offense. This depends on where you live, however, some of the most serious sex offenses include:
- child pornography
- indecent exposure
- sexual assault
- statutory rape
- burglary with sexual assault
Some states have even included public urination as a sex crime.
If an individual has completed their probation or jail sentence it might still be necessary for them to be registered as a sex offender.
What does this mean for employers?
“Signed into law by President Clinton in 1996, Megan’s Law requires that states register individuals convicted of sex crimes and disclose certain information about such offenders to the public. Although the registration and disclosure rules vary from state to state, the majority of the states maintain websites that allow people to freely look up individuals by name and location. For instance, in California, with a click of a mouse you can discover such information as the name and address of the offender, view a picture and learn about the type of offense that led to the particular offender’s conviction. Recent shocking events in the news have shown that convicted sex offenders pose a risk of reoffending after they re-enter society; the primary purpose of Megan’s Law is to protect children and the community in general from those individuals.
Megan’s Law, however, has other far-reaching ramifications that can affect you as an employer. While there is a societal benefit in employing ex-convicts and assisting their re-integration into society, employers have reason to be concerned with how Megan’s Law could affect their liability should they hire a registered sex offender. Surprisingly, there is still very little case law discussing Megan’s Law in the context of employment litigation.”
The fact that there is free, unrestricted access to more than 90,000 sex offender records online might seem like a great thing for employers, however, it depends on the state. Many employers may not have read Megan’s Law completely, which states that in California using information from the Megan’s Law Database to gain information relating to health insurance, loans, credit, insurance, employment, education, housing or accommodations as well as certain benefits or services from any business establishment are prohibited.
There are exceptions to the law for employers to use the information if they are required to do so by another law or if the information is used to protect a person at risk.
Penalties for Misusing Sex Offender Information Can Occur
According to Good Hire, if an employer doesn’t use the sex offender list for purposes other than to protect a person at risk the law states that, “shall make the user liable for the actual damages caused, and any amount that may be determined by a jury or a court, not exceeding three times the amount of actual damages, and not less than $250, plus attorney’s fees, exemplary damages, or a civil penalty not exceeding $25,000.” Cal. PC 290.46(l)(4).
Keeping a Safe Workplace
Employers are forced to walk a fine line between the obligation to provide a completely safe working environment for their employees as well as their obligation from refraining to consider a potential employee’s criminal history.
Both negligent hiring and negligent retention are common law claims that are recognized in most states.
Negligent hiring is where the employer hires a person, of who the employer either knew or should have known was unfit for the role. Negligent retention means that the employer has learned that the employee is unfit for continued employment, but still keeps the person on.
If either of these two cases occurs, all the plaintiff needs to do is prove that the employer knew about the potential employee was unfit for hiring, or found out afterward but still kept them on the payroll.
For example, if someone who works in a car sales company is a registered sex offender, and continuously takes people on test drives, where an incident occurs, the victim can claim that the employer should have known the dangers of keeping that person within their company.
Like previously mentioned, the laws in California prohibit the use of the state’s sex offender registry information for the purpose of employment.
In New York, employers are unable to make a decision based on prior convictions unless there is a direct link between the previous crime and the current role of employment.
Working With Sex Offenders Employment Restrictions
If you are an employer in California and are able to determine that your potential employee falls under either of the two mentioned exceptions which allow the use of sex offender registration consider whether your business falls under the exception. These usually include:
- Humane societies
- Adoption agencies
- Financial institutions
- Government agencies
- Community care felicities
- Child care centers
- Public housing authorities
To make sure, you can always consult California PC 290.46(j)(3) to see whether your organization falls under one of these categories.
There is also the possibility that sex offender information needs to be used in order to protect a person at risk. This includes if the employee goes into other people’s homes to perform a service or works with the disabled, elderly or children.
If you run a business in California and the potential employee doesn’t fall into either category, you cannot use the sex offender registry in order to make your hiring decision.
That being said, there is no law prohibiting you from using records of conviction from criminal courts in order to make a decision about a potential employee.
It should be noted that in the state of California, you can only use conviction records that are seven years old or less. This time limit depends on state to state so it is best to check out which timeframe applies to your state.
If an Employee is an Offender
If you are an employer who has found out that an existing member of your team is registered as a sex offender, there are steps that you can take in order to protect yourself from possible future litigation.
Take Interim Action
Check to make sure that the person in question is, in fact, listen to Megan’s Law Registry and analyze the date and nature of the conviction. With that information, you can assess as to how much time and what type of contact the employee has with his or her coworkers as well as customers. This might lead to your changing the employee’s duties and eliminating any possible customer contact, for example as your company reviews the situation at hand.
You should notify the employee that you have found out their status as a registered sex offender. You should also let the employee know that the company has the matter in review and allow the employee to provide you with any needed information. If the employee should ask whether they will be terminated, you should always state that no decision affecting their employment will be made until the review is concluded.
Independently Assess Information
When you have addressed the possible short term risks by removing the said employee from any customer contact, you should review thoroughly all the facts regarding the situation.
This includes working together with legal counsel in order to establish what type of legal obligations there are. For example, does the state recognize claims of negligent retention? Other information to consider includes:
- State’s public policy to encourage the employment of felons
- Duties and responsibilities of the job
- Extent that the crime would affect a felon’s fitness for the ability to perform
- Time passed since the offense occurred
- Person’s age when the offense was committed
- Seriousness of the crime
- Information indicating rehabilitation and good behavior
It should be noted that employers must keep in mind its obligations to the Fair Credit Reporting Act as well as any state laws when attempting to obtain criminal history information. When the employer questions their employee, they have the right to be accompanied by a union representative, if they are represented by a labor union.
As soon as the employer has a complete understanding of the law, as well as the facts related to the employee’s conviction, and the job requirements, they should take appropriate action. If it is concluded that the employer cannot keep the employee in question because of their potential risk to others, they need to take all the necessary steps to protect themselves, the people within their workplace as well as customers from any potential risks.
What Can Registered Sex Offenders do When it Comes to Employment?
While being a sex offender makes finding a job that much more difficult, it is not impossible. One of the harder aspects of being hired for a position is that some employers see all crimes of being of equal severity.
Prospective employers will usually inquire as to whether you have a criminal record as well as to conduct an employment background screening in order to hire a person they can trust.
Anyone involved and convicted of a sex crime will likely have more restrictions in terms of employment than people that have been convicted of a non-sex crime. Many restrictions greatly depend on the state they reside in, with a large number of states prohibiting registered sex offenders from either visiting or living within 500 feet of a child safety zone.
Child safety zones include things like schools, parks, athletic centers, daycare centers, and youth centers. Sometimes, people who are convicted of a sex crime are also must adhere to the following restrictions in terms of employment:
- Having their movements restricted to a certain area
- Restricted contact with a victim or minors
- Being unable to own or purchase firearms
- Conduct regular drug and alcohol screenings
- Have limited or no internet access
While most state laws do not specifically prohibit a sex offender from holding particular occupations, there might be times when a sex offender is disqualified for a position due to their conviction. These include being able to attain licensing for daycare workers, teachers, coaches, and healthcare providers.
Possible Career Paths for Past Sex Offenders
While it might be discouraging when applying for various jobs and being rejected for various roles, there are a number of areas that sex offenders are able to find work.
There are a number of companies that are willing to hire people with a sex offender history. It is recommended that you obtain a Commercial Driver’s License prior to applying as you will need one for the job.
Some fast-food restaurants like McDonald’s and Subway hire sex offenders.
Many animal shelters are happy to employ past sex offenders as there is minimal contact with the public.
There are various companies that will take on sex offenders within the construction industry including plumbing, electrical, welding, roofing, HVAC and carpentry.
If you want a new start you can become an independent contractor.
There are many 1099 positions that will not require a background check allowing you to work online.
Know Your Rights
As many sex offenses are classified as felonies, if you are convicted it will result in your being a convicted felon. This might mean that you will lose some of your rights as a result. The right to carry a firearm, access federal student load programs or restrict driving privileges might all be consequences of your felony, or even have limitations on your voting rights.
When it comes to employment, sex offenders might have the following restrictions imposed on them:
- Restrictions on being in or near school zones
- Restraining orders (which restrict being near the victim of the crime)
- Being able to work in certain places and/or
- Being able to work with certain people
You might also have the right to get your name removed from a Sexual Offender Registry
“Some states require that you be listed on a sexual offender registry for your lifetime and others require registration for a period of many years. Under some circumstances, your name may be removed from the registration before the expiration of this waiting period (usually a minimum of at least ten years) for relatively minor crimes, where you were convicted as a juvenile for an offense that involved a consensual sexual relations, where your crime was reversed on appeal or after the successful completion of a deferred resolution program. Because the rules on this vary from state to state, it is best to consult with an attorney who practices in your state.”
While states allow the removal in a few situations, it might be because:
- Your criminal offense has since been decriminalized
- Your probation period is over
- You have met an obligatory period with a clean criminal record
- You have completed counseling and any other ordered treatments
- You have been in obedience with the registration requirements
- You have a history of rehabilitation
- Your record of conviction of the sexual offense has been erased
- You were underage at the time you were convicted of your sexual offense
- You are no longer a risk to the community
- You have been pardoned or your conviction
If you are an employer considering a number of people for a certain role within your workplace, there are many things to be considered. There are sensitive aspects of the employment process, which need to be thoroughly understood when making up your mind about who to hire, one of which is hiring a past sex offender.
Different states across the United States have diverse laws in regards to hiring such individuals. It is vital for employers to fully comply with the laws regarding employment in their state, or face the consequences which come with negligent hiring.
On the other hand, employees with a sex offender past need to understand sex offender employment restrictions in their state as well as the sex offender employment laws in order to protect their rights. There are always businesses willing to employ past sex offenders, so while it might be a frustrating process, there is a light at the end of the tunnel.