What circumstances might lead you to make different decisions in different cases under Megan's Law?
Case: Full Disclosure on Sex Offenders?
Megan’s Law provides that all states are now required to have all convicted sex offenders register so that residents are aware of their presence in a neighborhood. The law is named for Megan Kanka, a 7-year-old who was raped and murdered by a twice-convicted pedophile who moved to her New Jersey neighborhood. He lured her to his house with the promise of showing her a puppy. Megan’s Law raises issues around the use of criminal registries in hiring and employee management.
Several issues are involved for an employer in dealing with Megan’s Law and employees. For example, in Michigan, the Attorney General released the names of 200 registered sex offenders who had been using MySpace (some in violation of the terms of their parole). Some employers found that the list included the names of some of their employees and had to confront the very real problem of what to do about it.
The presence of a convicted sex offender presents conflicting obligations and concerns. Employers want (and need) to protect other employees and customers from harm based on negligent hiring and negligent retention issues. But is this person a threat? What if the person has an exemplary work record? In some states, it is illegal for employers to use any information found on the Megan’s Law website for purposes of employment.
Perhaps the easiest way to proceed would be to keep from hiring convicts in the first place, but federal law limits an employer’s ability to do that. The EEOC says that the use of conviction records in employment decisions has an adverse impact on African American and Hispanic males. Using a blanket prohibition against convicts in hiring may allow a plaintiff to demonstrate a disproportionate impact on protected categories of applicants.
Is an employer required to check the registry? It depends on the job. Generally the answer is “no,” but for certain jobs there is an obligation to check. Those jobs include positions in health care facilities and hospitals (e.g., nurse or aide), day cares and schools (e.g., teacher or aide), security (e.g., guard), social and mental health facilities (e.g., social or mental health worker), taxi and bus services (e.g., drivers), and recreational facilities (e.g., fitness trainer). Virtually any position with access to potential victims is a job with the potential for problems.
Two of the names on the Michigan list presented some difficult management decisions. In one office equipment company, a 34-year-old office equipment repair technician was paroled after serving a 7-year sentence for attacking women on jogging paths. His previous employer offered to rehire him as a field technician who would travel to other offices to repair business machines, as he had been an excellent employee with outstanding repair skills.
In the other case, a new employee was found to be on the list. He was an African American who had served 10 years for child pornography possession. He is driving a school bus for a church and has thus far been a model employee, although he did not list his conviction on the application form even though the question was asked.
What circumstances might lead you to make different decisions in different cases under Megan's Law?
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