The manager immediately recognized the man in the mug shot. It was one of his store employees who at that moment was stocking store shelves about 50 steps away. According to the printout, the employee had a six-year-old conviction for indecent assault. The curious manager, wondering if he was the victim of a dark joke, opened his Web browser and searched his way to his state’s Megan’s Law Web site. He typed the employee’s last name into the search field. Sure enough, up came a page bearing general information about his employee’s indecent assault conviction. This was no joke. Now what?
This example illustrates the quandary in which many employers are finding themselves as most state Megan’s Law sites enter their third year. Many Web surfers are keenly aware of the information available from these databases, and when they discover that one of their co-workers is a registered sex offender, they take action. The tricky question for the employer is, what action should it take?
"Megan's Law" is the common term for the collection of state laws that require law enforcement authorities to identify sex offenders to the public, largely via the Internet. The laws are named for Megan Nicole Kanka, who at age 7 was sexually assaulted and murdered by a twice-convicted sex offender who was living across the street from her.
In May 1996, President Clinton signed an amendment to the Jacob Wetterling Crimes Against Children Act that required each state in the country to notify the public about sexual offenders who reside in their area. Today, each state publicly discloses information about convicted sexual offenders. At least 48 states have developed easily accessible sex offender Internet registries. According to the advocacy group Parents for Megan’s Law Inc., more than 540,000 individuals were listed in 2006 on Megan’s Law registries across the United States.
The database of information about sexual offenders allows the public to peruse the registries free of charge and, with only a few keystrokes, identify who in their communities has been convicted of sexual offenses. For instance, in New York, the state classifies offenders by their propensity to commit another sex crime. Site visitors can search the New York State Sex Offender Registry for moderate- and high-risk sexual offenders by name, county or ZIP code.
In Pennsylvania, the state categorizes registrants as either sexual offenders or sexually violent predators. The registry maintained by the Pennsylvania State Police allows the public to search by name, ZIP code, town or county. In California, site visitors can search for sex offenders by city, ZIP code, county or within a predetermined radius of a selected address, park or school.
At virtually every state’s registry, when the list of names appears on-screen in response to searches, one mouse click leads the viewer to the offender’s information and photograph. Thus, someone surfing the Internet at home can punch in some geographic restrictions, then see who in their community is listed. When California’s Megan’s Law registry went live on the Internet in 2004, there were more than 33 million hits at the site during the first two weeks. When Hawaii upgraded its Megan’s Law Web site in 2005, the site had 125,000 hits in the first 24 hours.
Not surprisingly, employees react badly to news that one of their co-workers is a convicted sex offender. Some will anonymously disclose listings to their superiors, as someone did to the grocer manager at the beginning of this article. Others take a bolder approach and demand that employers take immediate action. Inevitably, pages printed from Megan’s Law Web sites are passed around the workplace, fostering gossip and, in some cases, embellishment of the facts. For the employer, this raises a number of legal issues.
The safe workplace
In most states, employers are forced to walk a delicate line between their obligation to provide a safe workplace for employees—and the ramifications for them if they fail to do so—and their obligation to refrain from considering an employee’s criminal history, except as it relates to suitability for employment.
Negligent hiring and negligent retention are common law tort claims recognized by many states. Negligent hiring refers to the hiring of individuals who the employer knew, or should have known, were unfit for hiring. Negligent retention refers to existing employees who the employer learns are unfit for continued employment.
Under these legal theories, a plaintiff claims injury by an employee who the employer knew was unfit to hire, or about whom the employer discovered information after hiring, and nevertheless kept the employee on the payroll. The plaintiff may claim that the unfit employee caused harm, and that the employer knew or should have known of the employee’s unfitness.
In such a case, the plaintiff need only demonstrate that the unfit employee’s act caused injury, and that the employer knew or should have known that the unfit employee could cause such an injury. For example: An employee is identified on a Megan’s Law registry. The employer is aware that the employee is a registered sex offender. The employee later commits a sexual assault in the employer’s parking lot. With all those facts in place, the employer could face liability under a negligent hiring or negligent retention legal theory.
On the other hand is the fact that some states impose limitations on an employer’s ability to arbitrarily take adverse employment action because the employee is listed on a Megan’s Law registry. The version of Megan’s Law enacted in some states—California being one example—prohibits the use of the state’s sex offender registry information for employment purposes. Further, some states have enacted statutes that limit the degree to which an employer may consider any criminal history.
In New York, for example, employers may not discriminate on the basis of prior convictions unless there is a direct relationship between one or more of the previous criminal offenses and the job in question. Employers also may not discriminate in granting employment unless it would involve an unreasonable risk to property or to the safety or welfare of the general public or specific individuals.
In Pennsylvania, the statute says employers may only consider felony and misdemeanor convictions that relate to an applicant’s suitability for employment in the particular position in question.
Application of these state laws is more readily apparent in some circumstances than in others. For instance, a day care center could legitimately defend its decision to reject an applicant with a prior indecent assault conviction. Similarly, a school bus company can probably defend its decision to reject a driver applicant with several prior convictions for driving under the influence.
Many circumstances are more of a close call, however. For instance: Is a man with a past indecent assault conviction unsuitable for employment with a landscaping company where all of his co-workers also are adult males? It likely would depend upon several factors, including the nature of the act that led to the conviction, how long ago the crime was committed and how much exposure to customers the individual has on a daily basis.
Pre-hire due diligence
Generally, employers should take steps to avoid being surprised by revelations such as the one the grocery store manager had at his desk that Monday morning. They should exercise proper pre-hire due diligence with all employees. It is, for example, good practice is to ask employees on applications whether they ever have been convicted of a felony and, if so, to disclose the date and nature of the conviction. Employers also must train managers so that they can effectively interview job candidates to elicit information about prior convictions. This allows employers to make hiring decisions without, in many cases, ever having to look at a Megan’s Law registry.
Finally, at the interview, employers can have an applicant authorize in writing a review of his or her criminal history. The employer should thoroughly check references By exercising proper pre-hire diligence, employers can identify applicants whose criminal history potentially may serve as a legitimate basis to reject the applicants.
When an employee is an offender
An employer who determines that an existing employee is registered as a sexual offender can take several steps to determine whether action is necessary and, if so, protect itself in future litigation.
●Interim action: The employer initially should confirm that the employee is listed on the Megan’s Law registry, and identity the nature and date of the conviction. Armed with that preliminary information, the employer should assess the capacity in which the employee works, paying particular attention to such factors as the amount and type of exposure the employee has to co-workers, as well as the amount of customer contact. It may be necessary to alter the employee’s duties (for example, by eliminating customer contact) while the company reviews the situation.
The employer should tell the employee about the discovery of his or her status as a registered sexual offender on a Megan’s Law registry. The employer should explain that the company is reviewing the matter, and that the employee will have an opportunity to provide information. When the employee asks whether termination is forthcoming—and the employee will ask—the employer should state that no decision will be made until the review is completed.
●Independently gather and assess information: With risk addressed in the short term (by, for example, removing the employee from customer contact), the employer should thoroughly investigate the situation. First, the employer must work with legal counsel to determine what legal obligations or limitations exist. Does the state in which the employer resides recognize claims of negligent retention? Does the state limit an employer’s ability to consider criminal convictions and, if so, in what respects? Does the state frown upon consideration of temporally remote convictions, even if they involved serious crimes? Does the state restrict the use of information contained on its Megan’s Law registry and, if so, to what extent do those restrictions limit the employer’s ability to act, if at all?
Second, the employer must make reasonable effort to understand the facts that led to the employee’s conviction of a sexual offense. At a minimum, the investigation should include the independent review of court records related to the conviction in question. Some states have criminal record repositories from which information can be purchased. Criminal case records also usually are available at local courthouses.
By independently reviewing criminal history records, as opposed to simply relying on information posted on the Megan’s Law Web site, the employer can avoid running afoul of any statutory prohibitions against the use of Megan’s Law information for employment decisions. The employer, while independently investigating, must keep in mind that it likely has obligations under the Fair Credit Reporting Act, as well as its state’s similar law as it pursues and obtains criminal history information. The employer also must question the employee about the conviction. If the employee is represented by a labor union, the employee may be entitled to have a union representative present while questioned.
Third, the employer must thoroughly review the employee’s job responsibilities and work environment to determine whether keeping the employee in the current job poses a risk to co-workers, vendors, customers and others to whom the employee may be exposed.
● Take appropriate action: Once the employer has an understanding of the law, the facts underlying the employee’s conviction and what the employee’s job requires, it should take appropriate action. There will be circumstances in which it is patently obvious that the employee is not suitable for employment.
For instance, an amusement park could legitimately defend its decision to terminate a park maintenance worker who has an indecent assault conviction in which the victim was a minor. Many cases, however, will be closer calls, and the employer will need to err on the side of caution, and then be prepared to defend its decision.
If the employee is represented by a union, the collective bargaining agreement likely will prohibit discharge without cause. Depending upon the circumstances, it may be in the employer’s best interest to discharge the employee, then vigorously defend the discharge in the grievance and arbitration process. If an arbitrator subsequently awards reinstatement, the employer can later demonstrate that it only kept the employee on the payroll because an arbitrator so ordered.
With respect to the grocery manager example: The employer obtained information about the employee’s conviction and determined it could not keep the employee on the payroll because of the potential risk to others. The employee’s union filed a grievance against the discharge and the case headed to arbitration over the issue of whether the employer had cause to discharge the employee.
Regardless of the outcome, the employer took appropriate steps to protect itself and the people who frequent its workplace. That is what all employers must do in such a circumstance.