What employers need to know about the new national sex offender registry as the U.S. Justice Department puts the finishing touches on a national Web-based sex offender registry, information on many convicted felons is suddenly available to anyone with Internet access. What does this mean for employers? Because sex offender status is generally considered public information, companies could be held liable for not using the database, which was set up under the federal version of Megan's Law. So far, 29 states and the District of Columbia have posted data to the national registry. The rest of the states must do so by the end of the year.
Experts warn that if a known sex offender victimizes someone while on the job, an employer could be held liable for negligent hiring or retention. According to lawyers who spoke to Inc., that means, unpleasant as it may seem, that you should run the names of all of your workers through the national registry.
Decide beforehand what types of offenses disqualify a person from employment at your business, but set the bar high for automatic termination. A low-level offender working in an office is probably not a risk. Moreover, the state databases are not consistent--some list people convicted for very minor offenses and others exclude older crimes. Whatever your policy, be prepared to stick to it. Just check the database against court records--and call your lawyer before you act.
If you fire a convicted sex offender, you probably aren't risking a lawsuit. At-will employment rules, which operate in most states, allow employers to fire someone for any reason at any time. All you need to do is to explain why you can't employ sex offenders. If you work with children, the reason is obvious. If unsupervised customer interaction is necessary for the job, it's fair to say you can't employ someone who's at risk for violent behavior.
Marc Katz, a labor lawyer in the Dallas office of the firm Jenkens & Gilchrist who has helped companies fight discrimination suits involving felons, says that managers run into trouble when they cook up an excuse (like tardiness) for firing a sex offender. The employee can then cite other employees' tardiness, argue that he was singled out unfairly, and sue the employer.
Ask recruits before they're hired whether they've been convicted of a felony. Julie Totten, a partner in Sacramento at the firm Orrick, Herrington & Sutcliffe, recently advised a company in the firing of an employee who turned up on California's database. Totten's client was able to fire the person because he had lied about his felony conviction. It's one way to circumvent the legal stickiness of this area.