California law restricts the employer's ability to use Megan's Law website data.
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Employment Screening Check
on Megan’s Law Website Leads To
Sexual Abuser’s Lawsuit
By Christopher W. Olmsted
William Mendoza, a convicted sex offender, applied for a job in August 2007. After Mr. Mendoza submitted his application, ADP Screening and Selection Services, Inc. conducted a background search on him. As part of the background search, it accessed the California Megan’s Law website and discovered that he was a sex offender. ADP passed this information on to the prospective employer. Mr. Mendoza did not get the job.
Mr. Mendoza sued ADP, alleging that his rights had been violated. He claimed that ADP had no right to use the Megan’s Law website for the purposes of an employment background check, and he alleged that ADP caused him to lose the employment opportunity.
Megan’s Law
Megan's Law is an informal name for laws in the United States requiring law enforcement authorities to make information available to the public regarding registered sex offenders.
Megan's Law is named after seven-year-old Megan Kanka, a New Jersey girl who was raped and killed by a known child molester who had moved across the street from the family without their knowledge. In the wake of the tragedy, the Kankas sought to have local communities warned about sex offenders in the area. All states now have a form of Megan's Law.
Individual states decide what information will be made available and how it should be disseminated. Commonly included information includes the offender's name, picture, address, incarceration date, and nature of crime. The information is often displayed on free public websites, but can be published in newspapers, distributed in pamphlets, or through various other means. (Source: Megan's Law summary)
California enacted its version of Megan’s Law in 2004. The law gives the general public access to certain information on the whereabouts of sex offenders so that members of our local communities may protect themselves and their children.
Restrictions On The Use Of Megan’s Law Data In California
California’s Megan’s Law provides limitations for the use of this data. Penal Code section 290.46 provides that the information cannot be used for purposes relating to employment and a number of other purposes (insurance, loans, education, housing, business, etc.)
The Megan’s Law statute provides that any person “aggrieved by the misuse” of information available on the website “is authorized to bring a civil action . . . requesting preventive relief, including an application for a permanent or temporary injunction . . . ” (see Pen. Code, § 290.46, subd. (l)(4)(B).
Mr. Mendoza, believing that ADP had misused the information for employment purposes, brought suit under this statute.
The Court Finds Loopholes For The Background Search Company
The employment screening company argued that it was not liable for violating the use restrictions in California Megan’s Law, and the trial court and appellate court readily accepted these arguments.
The company attacked the lawsuit by filing a special motion to strike the complaint pursuant to California’s “anti-SLAPP” statute. This statute allows defendants to file a motion to dismiss a meritless lawsuit filed primarily to chill the defendant’s exercise of First Amendment free speech rights.
The company’s motion argued that Mendoza’s claims arose from the company’s actions in furtherance of its constitutional free speech rights. In other words, the company argued that it had a constitutional free speech right to republish information on the Megan’s Law website to its clients.
Mr. Mendoza pointed out that the anti-SLAPP statute did not apply to “commercial speech” and therefore ADP’s disclosure was not protected. The court rejected this argument. Business communications are not “commercial speech” unless they are made about the company’s business or about its competitors. Here, ADP communicated information about Mr. Mendoza, not its business or competitors.
Mr. Mendoza also argued that the anti-SLAPP statute did not apply because it does not protect criminal conduct; ADP violated the Megan’s Law restrictions on the use of sex offender data. The court also rejected this argument. ADP’s conduct was not criminal in nature because the statute provided civil remedies, not criminal remedies.
The court acknowledged that Megan’s Law prohibits the “use” of information in the database for employment purposes. But technically, ADP did not “use” the information to make an employment decision. It merely passed the information on to the employer.
“We are satisfied that the Megan’s Law statute is not intended to create liability for damages on the part of employment-screening businesses who access, compile and republish information disclosed on the Megan’s Law website, and that the statutory liability created by the Megan’s Law website statute should be limited to employers who ‘use’ information disclosed on the Megan’s Law Website as a basis for an employment decision.”
The Employer’s Dilemma
The dilemma for employers is that although the court let the employment-screening company off the hook, apparently an employer could be found liable for using Megan’s Law data, provided by the screening company, to make an employment decision. In this particular case, Mr. Mendoza did not sue the prospective employer.
Of course the Megan’s Law website is not the only source of information about a sex offender’s criminal background. Employment-screening businesses have access to criminal court records, and the same criminal history found on the Megan’s Law website may be found by searching court records.
In order to avoid potential legal challenges, employers ought to confirm with their employment screening service providers that the provider does not use the Megan’s Law website in California.
Related Article:
Plumbing Contractor Not Liable For Former Employee’s Criminal Act.
Download entire April 2010 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2010 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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