In 1996, the United States Congress passed Megan's Law, which authorizes local law enforcement agencies to make information available to the public regarding registered sex offenders. The law was named for Megan Kanka, who was seven years old when she was raped and murdered by a known child molester who moved across the street from her family. Since the passage of Megan's law, all 50 states have passed their own versions of Megan's Law in order to make information about registered sex offenders available to their residents. In 2005, California's Megan's Law website became operational, providing users with information on more than 63,000 registered sex offenders in California. Users may search the website by an individual's name, or by geographic area.
Since the Megan's Law website became operational, questions have lingered as to how individuals and businesses may use information obtained from it. A recent decision from the California Court of Appeal, Mendoza v. ADP Screening and Selection Services, Inc., recently addressed this issue.
The Mendoza Decision
In August 2007, William Mendoza filled out an application for employment. His prospective employer then hired ADP, an employment services contractor, to conduct a pre-employment background check on him, which included searching for Mendoza on California's Megan's Law website. ADP apparently found Mendoza on the website and reported this information to the prospective employer. Mendoza did not get the job.
Soon after his rejection, Mendoza sued ADP, claiming that it violated California's Megan's Law by using this information in making an employment decision. Generally, California's Megan's Law allows information regarding registered sex offenders to be used to "protect a person at risk." (California Penal Code § 290.46(l)(1)). However, the law does not allow information obtained from the website to be used for several other purposes, including employment, health insurance, credit, education, and housing. (Penal Code § 290.46(l)(2)). Violators may be liable for actual, and trebled, damages, or a civil penalty not exceeding $25,000.00. (Penal Code § 290.46(l)(4)(A)).
In response to the suit, ADP argued that it was not engaging in "use" of information from the website because it was only providing the information to a prospective employer, and did not rely on it to make an employment decision. The Court agreed. Although the term "use" is not defined in California's Megan's Law, the court relied on the law's legislative history to determine that the legislature recognizes a distinction between "the ‘use' of sex offender information and the ‘reproducing' or ‘publishing' of such information." Therefore, because ADP was merely republishing Mendoza's information, the Court found that Mendoza could not show a probability of prevailing in his suit against ADP. The Court also found that ADP's reproduction of information from the Megan's Law website was commercial speech activity protected by the First Amendment. Interestingly, although the case did not directly address the use of information from the Megan's Law website by employers, the Court did note that employers could make a strong argument that they have a duty to protect their employees from sexually violent predators.
What Mendoza Means For Employers
Although Mendoza provides some protection to companies that conduct pre-employment criminal background checks, it is of less help to employers. As explained above, California's Megan's Law prohibits employers from using information obtained from the Megan's Law website for purposes relating to employment. However, this does not mean that employers are unable to use information discovered on the Megan's Law website to "protect a person at risk." Unfortunately, there is currently no definition of the term "a person at risk" in Megan's Law, or elsewhere. Although the issue was not directly before it, the Mendoza court took a broad view of the term "a person at risk," suggesting that employers could argue that their employees are persons at risk that must be protected from dangerous sex offenders.
Nonetheless, as there is no clear definition of the term "person at risk," employers should proceed with caution before making employment decisions based on information from the Megan's Law Website, regardless of whether the information was obtained directly from the website, or from a third party provider. Before making such a decision, employers should thoroughly consider their working environment, including whether their employees, clients or third parties are likely to be left alone with the individual in question. Also of relevance is whether the person will have access to individuals in a vulnerable setting, such as in their own homes. Employers should also consider the demographics of their workplaces, as courts will likely be more inclined to find that children, the elderly, and the physically and mentally disabled are "persons at risk."
It is also important to note that the prohibitions of California's Megan's Law on using information regarding registered sex offenders in making employment decisions applies only to information obtained from the Megan's Law website. Thus, California's Megan's Law does not prevent employers from acting on information regarding an applicant's sex crimes that is lawfully obtained from other sources, such as from a Live Scan report from the Department of Justice. Therefore, employers may continue to use criminal background checks, provided that they are otherwise lawful. In addition, Megan's Law has no effect on otherwise lawful employer inquiries regarding an applicant's criminal convictions, and "no contest" or "guilty" pleas.
This article was written by Brianne Marriott, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore. Ms. Marriott is an Associate in the Fresno office and can be reached at (559) 256-7800 or at firstname.lastname@example.org. For more information regarding the information above or our firm please visit our website at www.lcwlegal.com, or contact one of our offices below.
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