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By Sep 1, 2007
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HR Magazine, September 2007 ​The law requiring sex offenders to register their presence in a community can present HR with complex — but manageable — retention issues.

When Michigan Attorney General Mike Cox released the names of 200 registered sex offenders in the state who had been using the popular networking site MySpace, some employers may have been surprised to discover names on the list that wer​e also on their payrolls. 

MySpace dropped all 200 profiles, but the fallout continued. Corrections officials discovered some offenders were using computers in violation of the terms of their release. And employers began to confront the long-standing question of what they can do if they find employees’ names on a state registry of convicted sex offenders. 

The answer is as complex as the question is simple. Any former convict’s presence in a workplace presents conflicting obligations and concerns. Certainly, employers want to protect employees and customers from harm, and they want to protect their companies from lawsuits arising from alleged actions by employees. Yet, an employer’s options for dealing with employees convicted of sex crimes may be limited by federal or state laws. 

Moreover, decisions might not be as straightforward as they may seem. For example, an employee on a criminal registry may have an unblemished work record, causing the employer to have reservations about discharging the person. In some instances, reassignment may be preferable to dismissal. 

As difficult as such considerations may seem, they’re manageable if HR professionals apply reasonable ground rules when they discover that an employee has—or is said to have—a criminal record. 

State sex-offender registries such as Michigan’s are the result of a 1996 federal statute known as Megan’s Law. The law underscores the importance of criminal registries in hiring and employee management. It requires registration by convicted sex offenders, and the creation of procedures for enabling residents as well as others to become informed of the presence of those offenders in their communities. 

All states now have their own Megan’s laws and sex-offender registries. An issue for employers is whether they should examine the registries. And if an employee’s name shows up, what next? 

To Look, or Not To Look

Generally, employers are not required to look at the registries, says employment attorney Linda Burwell, a partner with the Detroit law firm of Nemeth Burwell who represents management in employment litigation. She says that “under Michigan case law,” for example, “there’s no legal duty to be aware that someone is on the list, and the mere fact that someone has a criminal record doesn’t establish a person’s violent nature.” 

But if you see—or if you’re told—that an employee is on a registry, Burwell continues, don’t act precipitously. “Don’t dismiss the employee immediately. Do an investigation,” she says. If you hear it from someone else, she adds, “see for yourself whether that person’s name is actually on the list.” 

No matter how you learn of a name on a registry, Burwell advises, make sure it is “on there legitimately, not by mistake. Find out whether the person is under court supervision or involved in treatment.” And “look at the employment application,” she adds. “Did the person admit to having been convicted of a felony? Get the details.” 

Attorney Lisa Borden, a shareholder in the Birmingham, Ala., office of Baker Donelson and an authority on employee selection procedures, says: “Look at the Megan’s Law in your state. That’s where you’ll find the rules governing what you may and may not do in response. 

“In California, for example, the state version of Megan’s Law makes it illegal for employers to use any information on the site for purposes relating to employment or health insurance. Misuse of the information exposes the employer to potential liability for money damages or an injunction. California cautions users of the list to consult with an attorney before using the information disclosed on the site.” 

Nonetheless, Borden adds, under the California law, “employers may take the convictions into account if the job involves people at risk.” Thus, for example, a conviction for an offense related to child pornography would obviously justify an employer’s decision to deny a person a job involving the education or care of children. 

In fact, employers may be obliged to check criminal registries when hiring for certain types of jobs, including “jobs in health care facilities, day care, teaching and any job dealing with potential victims,” Burwell notes. And state lawmakers have been expanding the range of occupations requiring criminal record checks. 

Moreover, Burwell says, examining a Megan’s Law registry during the hiring process can head off the need to deal with Megan’s Law later in the event it’s discovered that a convicted sex offender has been hired. 

And a good employment application, Burwell adds, should state that any misrepresentation or omission of material information can be a basis for termination. It should also state that conviction isn’t necessarily a bar to employment, however. 

When Megan's Law Isn't Enough

Often, to get a full picture of the extent that conviction for a sex crime can be considered when making employment decisions, an employer has to take more than a state’s Megan’s Law into account. State antidiscrimination laws may come into play. 

In New York state, for example, the Megan’s Law says people or organizations receiving information from the sex-offender registry may disseminate it to others but may not use the information “to engage in illegal discrimination” against a person listed on the registry. 

“Illegal discrimination” as defined in New York’s Human Rights Law includes the denial of employment based on one or more criminal convictions unless either of two exceptions applies: 

  1. A direct relationship between one or more of the criminal offenses and the job sought. 
  2. If the person gets the job, it would pose an unreasonable risk to property or to the safety or welfare of specific individuals or the public. 

In deciding whether the employment would involve that degree of risk, employers may take into account the following: 

  • The state's public policy to encourage the employment of people who have been convicted of crimes. 
  • The duties and responsibilities of the job. 
  • The extent the crimes would affect the persons fitness or ability to perform those duties or responsibilities. 
  • The time elapsed since the criminal offense. 
  • The person's age at the time of the criminal offense. 
  • The seriousness of the offense. 
  • Any information produced by the person, or produced on the person's behalf, demonstrating rehabilitation and good conduct. New York, for instance, issues certificates of rehabilitation, as do Arizona, California, Illinois, Nevada and New Jersey; New York's certificate creates a presumption that the person has been rehabilitated. 
  • The private employers legitimate interest in protecting property as well as the safety and welfare of specific individuals or the public. 

Conundrums for Employers

“An auto mechanic or call center job would be very different from a teaching or child care job, for example,” Borden observes. “Use of these factors enables an employer to justify its decisions.” 

While weighing the prohibition on discrimination against former convicts, however, employers must also consider their potential liability for negligent hiring or negligent retention. Not all state courts give victims a cause of action for these forms of negligence, but those that do require the purported victim to show four circumstances:

  • The nature and gravity of the offense. 
  • The time passed since the conviction. 
  • Whether the person was rehabilitated. 
  • The nature of the job. 
An auto mechanic or call center job would be very different from a teaching or child care job, for example, Borden observes. Use of these factors enables an employer to justify its decisions. 

While weighing the prohibition on discrimination against former convicts, however, employers must also consider their potential liability for negligent hiring or negligent retention. Not all state courts give victims a cause of action for these forms of negligence, but those that do require the purported victim to show four circumstances:

  • The employee or applicant was unfit for the job. 
  • The employer knew or should have known of the employees or applicants lack of fitness. 
  • An action or a failure to act by the employee caused injury. 
  • The injury was most likely a result of the employers negligence in hiring or retaining the employee. 
Borden says that in California, the law barring employers from using information on the sex-offender registry in employment decisions also constitutes a defense against claims of negligent hiring or negligent retention of convicted sex offenders. 

Retention, but with a Transfer

Apart from the legal issues and caveats that pertain to employing convicted sex offenders, there can be practical considerations. In some instances, dismissal based on a conviction may not be the employer’s best course of action, especially with a long-term employee who has been doing a good job. 

“Surprisingly, many of the guys are people that employers want to keep,” says Charles Onley, a research associate with the Center for Sex Offender Management, a project funded by the U.S. Department of Justice. Onley, who has two decades of experience in community corrections in Montgomery County, Md., has found that “most employers don’t want to lose good people, no matter what they’ve done.” 

William Carbone, executive director of Connecticut’s Court Support Services Division, notes that registered sex offenders’ deeds vary in degree and offenders “span the range from Wall Street types to landscaping laborers.” 

If a valued, long-term employee has been convicted of a sex offense, reassignment to minimize risks might be appropriate. Onley describes the case of a 34-year-old office-equipment repair technician who was paroled after serving seven years of a sentence for attacking women on jogging paths. His previous employer offered to rehire him as a field technician who would travel to offices to repair business machines. 

The parole officer disallowed that plan but agreed to explore other options and met with the employer. In the end, the offender went back to work as a bench technician with no travel duties. It was a lower-paying, lower-status job, but it met everyone’s needs. 

Onley also recommends that the employer talk with the convicted offender—and with the person’s potential co-workers—about the conviction and about the prospects that the person may return to the workplace. “Talk to other employees. Find out their comfort levels.”

Says attorney Borden: “There are few situations in which you should dismiss a person immediately. Recidivism is based on desperation. Reassignment to eliminate risks might be a good idea—for example, instead of sending an employee on the road, give [him or her] an office job.” 

Marta Nelson, director of policy and planning for the New York-based Center for Employment Opportunities, places former offenders (though not sex offenders) in jobs. “What you’re convicted of doesn’t necessarily affect your job,” she says. 

In assessing whether to reassign a former sex offender to a job involving less exposure to liability, employers should consider the type and location of the job, whether it would give the offender access to potential victims, the types of co-workers and subordinates in the workplace, whether the job would involve travel, the work hours, the degree of supervision, and the amount of access to technology such as the Internet. 

Some positions with an unacceptable degree of access to potential victims would include, for example, security guard; hotel worker; nurse or nurse’s aide; mental health therapist or social worker; child care worker; homeless-shelter employee; limousine, taxi or bus driver; manager of a restaurant or a retail establishment; residential or recreational building employee; building supervisor; and teacher, instructor or teacher’s aide. 

Be Prepared 

Experts advise employers to be ready to address a discovery that an employee is a convicted sex offender. 

“Think about the situation before it arises,” says employment law specialist Marc Katz, a Dallas partner in the Bracewell Giuliani firm. “That way, you won’t have any knee-jerk reactions.” 

And if the situation does arise, Borden says, at some point you should be calling your lawyer. 

Diane Cadrain is an attorney and writer in West Hartford, Conn., and has been covering workplace legal issues for 20 years. She is a member of the Human Resource Association of Central Connecticut.

Web Extras

Online sidebar: Rehabilitation Therapists and Employers Work Together

Online sidebar: Incentives for Employers

Web site: U.S. Department of Justice search tool

Press release: Justice Department Releases Megan's Law Guidelines

Web site: The Re-entry Policy Council

Web site: The Legal Action Center

Web site: The National HIRE Network (Helping Individuals with criminal records Re-enter through Employment)

Megan's Legacy

Megan Kanka was 7 when she was raped and murdered in 1994 by a twice-convicted pedophile who had moved to her New Jersey neighborhood and had lured her to his house on the pretense of showing her a puppy. Her death led to enactment of a sex-offender notification law in New Jersey and, in 1996, to a federal Megan’s Law, since then amended by the Adam Walsh Child Protection and Safety Act of 2006.

Megan's mother ​Maureen Kanka promotes efforts to prevent victimization of children.

Megan’s Law requires states to enact laws and set up registries of convicted sex offenders so that communities can be informed of the presence of such offenders. Some states already had such registries.

Anyone convicted of rape or rape-like offenses or of sexually assaultive crimes involving sexual contact, regardless of the age of the victim, must register in the jurisdictions where they live, work or attend school. They must supply their names, residential addresses, places of employment and information about the offenses leading to their registrations.

The laws also require states to develop procedures for notifying communities when a registered sex offender moves in. All states now post such information on the Internet, enabling employers and residents to search by names or geographic areas. Many states, depending on the offenses, also send written notices to neighbors and community organizations such as schools, camps, and establishments that care for women or children.

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