What is Megan's Law? Sex Offender Employment Laws

What is Megan's Law?

The first Megan’s Law was a state law enacted by New Jersey. In 1994, a man with a history of sex offenses raped and murdered a seven-year-old girl named Megan Kanka. In hopes of thwarting such crimes, New Jersey created the first sex offender registry, which required sex offenders to register and report their whereabouts to the public. Soon after, the federal government passed a law requiring all states to maintain and publish a sex offender registry.

The various state laws that were enacted are informally referred to as Megan's Law. Sex offender information is published on readily accessible websites, and it might include name, picture, address, the nature of the offense and dates of conviction and incarceration.

Megan's Law Compliance

In addition to passing their own Megan’s Laws that create the registries, state legislatures have placed restrictions on how registry information may be used. These adjunct regulations are often thought of as being part of what is Megan's Law. When we talk about compliance with Megan’s Law, we’re generally talking about complying not only with the laws that create the registry but also with the ones that govern its use.

From a background screening perspective, the important restriction is this: an employer generally may not use sex offender registry information in a hiring decision. However, there are many exceptions.

The first set of exceptions is based on the employee’s line of business. There are businesses in which an employer must not hire a registered sex offender, and may be subject to fines and other penalties if they do so. The exact list varies by state, but it often includes government agencies, K-12 education, preschools, housing authorities, adoption agencies, health care providers, child care centers, community care centers, humane societies and financial institutions.

The second set of exceptions is based on the job the employee will perform and the populations that they’ll interact with. This includes situations where the employee would go into private homes to perform services or would work with vulnerable people including children, the elderly and the disabled.

Even in situations where employers may not consider registry information, they may look at the underlying crime, provided they do so within the scope of federal, state and local law. If a candidate was arrested and convicted for a sex crime, a record of that consists outside the registry, and in some cases may be used by employers making a hiring decision.

Like all criminal records, arrests or convictions for sex crimes are subject to the Fair Credit Reporting Act (FCRA). An employer must inform the candidate that a background check will be conducted and must obtain the candidate’s permission. Many states have enacted more restrictive laws. Examples are “ban the box” laws, which forbid asking about a criminal record on an initial application. Many states also have fair chance hiring laws, which require an employer to make a hiring decision and extend a conditional offer of employment before conducting a background check.

Employers are in a difficult position in regard to sex offenders. There are situations in which it is illegal to hire these candidates. There are other situations in which they may not consider the sex offense in their hiring decision. Then there are the cases in which there is a sex-related arrest or conviction, and their use of that information is governed by state and local law.

Where state and local laws grant leeway in the use of sex crime convictions, employers should consider whether the crime is actually relevant to the job duties. They should also look at how old the offense is, the candidate’s work history since then, whether there’s evidence of rehabilitation and other information from the application or background check. They should consider what people the applicant would actually come into contact with on the job.

Differing State Laws on Sex Offender Information

As we’ve seen, regulations governing the use of registry information vary from state to state, and employers need to be aware of the laws that apply in their case.

California, for example, has a laundry list of prohibitions around the use of the information. You’re not permitted to use it for any purpose related to health insurance, credit checks, loans, employment, education, scholarships, fellowships and housing. Businesses aren’t allowed to discriminate in benefits, privileges or services provided based on sex offender status.

California does allow exceptions related to employment. One is any situation where hiring a sex offender would violate some other law. Another is when the employer is using sex offender information to protect an individual at risk, although the specifics of who might be at risk are poorly defined.

With all the subtleties of the laws in various states, it’s a challenge for employers to be fully compliant and still keep their workforce and their customers safe. It’s wise to have written procedures, developed with the input of an attorney who specializes in employment issues, to cover all the situations in your jurisdiction. It’s also best to engage a CRA with nationwide scope who keeps up with the latest laws and their interpretations.

Bottom Line

Employers and CRAs can search registries and discover whether an applicant is a registered sex offender. However, there are restrictions on what they can do with that information. IN most cases, they may not automatically disqualify an applicant based on a registry entry. Along with their own versions of Megan’s Law, many states have enacted laws governing registry use.

States and localities continue to enact sex offender employment laws and other restrictions on background checks, and rules are likely to grow even more complex. Eagle Eyes Screening Services is a company that CRAs can rely on for wholesale screening services. We keep up with the latest developments not only in legislation but also in screening technology, and continue to provide our clients with high-quality, accurate, compliant results.