By a Biometrica staffer
In previous posts, we’ve explained Fair Credit Reporting Act (FCRA) and the Equal Employment Opportunity Commission (EEOC) guidances on background checks, how negligent hiring can cost a company, and whether prospective employers can run checks on potential employees. Today, we introduce you to a very specific legal aspect linked to background checks: the sex offenders’ registry.
The concept of a sex offenders’ registry and the regulations around it have been in the news this week because of an incident that dates back to 1993. When he was 18, Randall Menges had consensual gay sex with two other consenting adults. The state of Idaho convicted him of violating its “crimes against nature” laws, which still stand in the state today and which also cover oral sex. A state court sent him to prison, where he served seven years, and also required him to register as a sex offender.
On Tuesday, May 18, however, U.S. District Judge Dana Christensen ruled that Menges should no longer be listed on the registry based on anti-sodomy laws that the U.S. Supreme Court declared unconstitutional in 2003. Christensen ordered Montana to remove Menges from the registry by May 21, and also mandated they expunge records that show he was required to register. But Montana’s attorney general plans to fight Christensen’s decision — he filed an appeal with the Ninth Circuit Court of Appeals the next day.
Employers of all stripes use background screening reports to make a determination on potential or current employees, contractors, volunteers or candidates for employment or service, including promotion, reassignment and retention. Criminal background checks are often part of that screening process, and that’s where the sex offenders’ registry could come in.
For instance, a June 2018 survey of employers, conducted by HR.com and commissioned by what was then the National Association of Professional Background Screeners (NAPBS) and is now the Professional Background Screening Association (PBSA), found that 95% of employers surveyed stated that they conduct one or more types of background screening. Of that, 94% said that the check included some form of criminal history search. A comprehensive screening can include a sex offenders’ registry search.
History Of The Sex Offenders’ Registry
But first, a little bit of history behind the creation of the sex offenders’ registry in the first place. To begin with, there is no single sex offenders’ registry. Each state has its own and there is a database for those convicted for such offenses on the federal level.
The history of this concept goes back to 1994, when New Jersey became the first state to create a rudimentary sex offenders registry. Colloquially called “Megan’s Law,” it was passed in response to the kidnapping and murder of 7-year-old Megan Kanka by Jesse Timmendequas, a convicted sex offender. Megan’s parents said that had they known they had a neighbor who was a convicted sex offender, they would never have let their daughter play outside unsupervised.
After New Jersey, several other states passed laws requiring authorities to inform the community when known sex offenders moved near them. In 1996, President Bill Clinton created an online federal sex offender registry. Today, all 50 states and several dozen tribes have sex offender registries in some form or the other.
The other act that played a big role in this is The Adam Walsh Child Protection and Safety Act, which President George W. Bush signed into law on July 27, 2006. The Act includes a section that honors the memory of Dru Sjodin. On the evening of November 22, 2003, after leaving work, 22-year-old Dru went missing. An investigation led police officials to Alfonso Rodriguez Jr., who was arrested on December 1, 2003. Rodriguez was a Level 3 registered sexual offender in Minnesota and had been released from prison after a 23-year sentence only six months prior to Dru’s disappearance. Among other things, Dru’s Law changed the name of the National Sex Offender Public Registry to the Dru Sjodin National Sex Offender Public Website (NSOPW), which provides information to the public on the whereabouts of registered sex offenders regardless of state, territory or tribal boundaries.
Can Employers Run Sex Offender Registry Searches?
In short — yes, prospective employers can run a search of a potential employee against the sex offenders’ registry in some cases. But the reality of doing so is more complicated. To begin with, each state has its own version of Megan’s Law and restrictions on the information from the registry that is publicly accessible, as well as limitations on other uses of it. Megan’s Law created three levels of sex offenders: Level 1 (low risk), Level 2 (moderate risk) and Level 3 (high risk). Local law enforcement decides whether to notify the public about Level 2 and 3 offenders. No information may be given out about Level 1 offenders.
But even if you have access to the information and the registry in your state, there could be restrictions. For example, California, where the list is publicly available, prohibits the use of any information from the Megan’s Law Database (the name by which the registry in the state is known) for several purposes, including employment. Why does the sex offenders’ registry matter, then, to the background screening process?
There are exemptions to the employment clause. Certain laws allow specific sectors to use the registry and, in some cases, employers are allowed to use it if it protects persons who are considered at risk. If you are a prospective employer, it’s wise to first look up the laws in your state governing the use of the registry, and then consult your legal team. Sectors that are exempted from this typically include government agencies, childcare, adoption agencies, community care, etc.