Preparing to hire a new employee can be nerve-racking since adding someone new to your business can impact morale and how well your business operates. If you hire the wrong person, it can lead good employees to look for new jobs and hurt productivity.
Did you know that more than 780,000 people in the U.S. are registered sex offenders?
Together with other types of pre-employment background checks such as employment verification, education verification, and criminal history searches, a sex offender background check can help you ensure that your new employees are well-suited for your company.
Sex offender background checks show you whether a prospective employee has been convicted of a sex offense so that you can protect your employees and customers and prevent potential liability.
However, there are important laws governing how sex offender registry information can be used.
This guide will help you understand these laws and answer frequently asked questions, such as “Can employers refuse to hire a sex offender?”
Let’s get started.
Why do Employers Conduct Sex Offender Background Checks?
While not all companies need to perform sex offender registry checks, businesses that provide services to children, have employees who have direct contact with the public, provide health care services, and other similar public-facing positions should consider requesting sex offender background reports.
Some industries include sex offender work restrictions and mandate that people have no sex offenses on their records.
Companies that hire people for the following types of positions might need to conduct sex offender background checks:
- Education positions
- Daycare positions
- Health care services for positions providing direct patient care
- Businesses providing services to disabled people
- Companies providing in-home care
- Recreation positions
- Legal or management positions
- Financial positions
If your business includes people who regularly volunteer, you might also want to consider screening your volunteers. Taking time to screen volunteers can provide your business or nonprofit with added liability protection and protect the safety of your workplace.
What Shows up on a Sex Offender Background Check?
When you conduct a pre-employment background check through a consumer reporting agency (CRA) such as iprospectcheck, you will have the option to request a variety of different types of background reports, including a sex offender registry check.
Sex offender registry searches include searches of multiple jurisdictions. A sex offender registry search will include records found in over 200 different registries, including over 150 States, Territories and Indian Nations.
If you only search your company’s state or the applicant’s state, you might not find information about his or her registration as a sex offender in a different state.
When you request a sex offender registry search on an applicant from iprospectcheck, the conviction for the sex offense may appear on the individual’s criminal history report.
For example, if you ask for a sex offender registry search and a county level criminal history report, the sex offense will normally be reported in the criminal history information as long as it can be reported in compliance with local, state and Federal law.
Some states restrict reporting of criminal convictions from the past seven years while others allow conviction records to be reported regardless of age. If your company is located in a state that restricts the reporting of conviction records to a specific time frame, an offense that happened before that time frame will not show the criminal conviction in the criminal history section.
However, the report will state that the person is actively registered as a sex offender.
If an applicant is currently registered as a sex offender, you might see the following types of information on the report:
- All names and aliases the applicant has used or uses
- Any distinguishing characteristics, including scars and tattoos
- The address the applicant provided to register as a sex offender
- The state in which the applicant was convicted of a sex offense
If the conviction can be reported, you will also see the type of offense, whether it was a misdemeanor or felony, the offense date, the disposition, the disposition date, and the sentence he or she received.
While you won’t see information about a sex offender’s risk level on your sex offender background check, sex offenses are classified by risk levels ranging from one to three.
A sex offender’s risk level is determined through a state-ordered sex offender assessment that considers the severity of the crime, the offender’s prior criminal record, and other factors that might increase his or her risk of reoffending.
Here is a brief description of the sex offender risk levels:
- Level 1 – Considered the lowest risk to the public and of re-offending
- Level 2 – Considered to have a moderate risk of re-offending and a moderate risk to the public
- Level 3 – Considered to pose the highest risk to the public and for re-offending
This type of information might help you to determine whether or not to move forward with a candidate’s hire. However, you shouldn’t automatically turn down a candidate based on his or her status as a registered sex offender.
Consider the offense of conviction and the position for which you are hiring before making your decision. If you rely on the information you receive on a background check report to make an adverse decision, make sure to comply with the FCRA’s two-step adverse action process.
How to Get a Sex Offender Background Check
You might wonder why you should partner with a third-party background check provider like iprospectcheck to check sex offender registry information since the registries are publicly available.
However, checking your state’s sex offender registry database will not provide you with information about offenses that might have occurred in other states.
If you try to check the registries in all 50 states, it can be very time-consuming. When you work with iprospectcheck, we can conduct a comprehensive search covering sex offender databases nationwide.
When you receive a sex offender background check from iprospectcheck, you might learn that your candidate is not a registered sex offender. This can help to alleviate any concerns as long as the other background check information is also good.
Some online providers might advertise that they offer a free sex offender background check. However, this is not the best option for employers to take. If you rely on this type of provider, you might receive incomplete or inaccurate information.
This type of report might also falsely flag an applicant as appearing on a sex offender registry because of name similarities or other problems, exposing you to a potential lawsuit if you rely on the report to make an adverse hiring decision.
Sex Offender Employment Laws: An Overview
While checking whether your candidates appear on the sex offender registry can provide you with important background information, you have to be careful how you use the information you might find.
Sex offender registry laws apply in every state, and you will need to check your state’s laws to learn how you can use sex offender background reports that you might receive.
Named for Megan Kanka, Megan’s Law was enacted in New Jersey after the seven-year-old girl’s neighbor raped and murdered her in 1994. The neighbor had prior sex offense convictions, prompting the New Jersey legislature to pass Megan’s Law, which created a sex offender registry.
Soon after Megan’s Law was passed in New Jersey, the federal government mandated all states to create publicly-accessible sex offender registries. While the reasoning behind Megan’s Law is clear, applying the data you learn from the registry can be complex.
Each state has its own sex offender registry law, and the rules differ from state to state. As an example, we have taken a look at California’s version of Megan’s Law below.
California Sex Offender Employment Laws
California employers are required to comply with Megan’s Law regardless of whether they partner with third-party background check companies like iprospectcheck. Under California’s law, convicted sex offenders must register with the California Sex and Arson Registry. Members of the public can search the database online.
While anyone can search sex offender records for free online, employers should understand the sex offender work restrictions for use of this data. Under Cal. Pen. Code § 290.46(l)(2)(E), people are prohibited from using information from the sex offender registry for any of the following purposes:
- Purposes of health insurance
- Purposes of insurance
- Loan purposes
- Credit determinations
- Employment purposes
- Education, fellowships, or scholarships
- Accommodations or housing
- Eligibility for services, privileges, or benefits provided by a business
In other words, most California employers may not use sex offender registry information to make hiring decisions. However, there are certain exceptions for companies when they make hiring decisions.
Employers can use sex offender registry information to make employment decisions when they are required to do so by law or when they use the information to protect at-risk people. Who is determined to be at-risk is not defined by the law and is subject to interpretation.
If you use information from the California sex offender registry for employment purposes that do not meet an exception, your company can be liable to pay the candidate’s actual damages, an amount ordered by a court of up to three times the amount of the actual damages or at least $250, attorney’s fees, and exemplary damages, or a civil fine of up to $25,000.
Employment Decisions Under Other State Laws
Other states have their own sex offender laws, and many have enacted a version of Megan’s Law. The prohibitions on how sex offender registry information might be used differ from state to state. To make sure that you comply with your state’s law, you will need to review it before you make an adverse employment decision based on a candidate’s registration status.
At iprospectcheck, our background check reports fully comply with the relevant laws. To make sure that you comply with the requirements of your state, you should talk to an attorney to determine whether your business meets an exception and is allowed or required to use sex offender registry information when making hiring decisions.
Most states require or authorize the following types of businesses to rely on sex offender registry information:
- K-12 schools
- Daycares and preschools
- Humane societies
- Government agencies
- Adoption agencies
- Public housing authorities
- Financial institutions
- In-home care agencies
You should review the law in your state to determine whether your business or nonprofit falls under an exempted category.
You might also meet an exception for employers to use sex offender registry information to protect at-risk people. If this exception applies in your state, your company will likely qualify if your employees work with children, disabled people, or the elderly. Your business might also be allowed to use sex offender registry information if your employees perform services in other peoples’ homes.
To protect yourself, you should conduct a risk assessment for candidates or employees who are registered sex offenders and document it. Review the candidate’s work history, the people with whom he or she will interact at work, and any evidence that he or she has been rehabilitated.
Information You Are Allowed to Consider
You are not prohibited from using conviction records when you make employment decisions. While you might not be allowed to rely on sex offender registry information to make a hiring decision, you are still allowed to request sex offender criminal record information showing conviction records for the underlying offense.
In most states, misdemeanor and felony conviction records can be reported regardless of age. The Fair Credit Reporting Act restricts arrest information that is older than seven years and did not result in a conviction from being reported by consumer reporting agencies on background check reports unless the position in question pays $75,000 or more.
The FCRA does not restrict the reporting of conviction information. However, a few states have restrictions on the use of conviction records that are older than seven or 10 years. This makes it important for you to review your state’s laws.
If a candidate tells you that he or she is a registered sex offender, you are allowed to use that information. You can ask a human resource professional to ask for more information about the underlying conviction and document what you learn so that it is clear where you learned the information.
In general, you should take care when you use sex offender registry information for employment decisions. Make sure that you know the laws in your state and comply with them. Document any risk assessment you perform and talk to an attorney to make sure you remain in compliance.
Can I Refuse to Hire a Sex Offender?
Any “Bright lines” regarding the use of information attained in a background check can be legally problematic, and sex offender status is one of those areas where special consideration is a necessity.
You have a special duty to protect vulnerable populations such as the elderly and children. You have a special duty to take reasonable steps to avoid negligent hiring and you want to maintain a safe workplace.
On the other hand, you need to establish the connection between the position being hired for and the criminal offense in question.
Would hiring a sex offender create an unreasonable risk to your clients and employees?
If not, you may be restricted from using this information to make employment decisions.
This is an area where good legal counsel can help you create effective and compliant policies.
How Long Does a Sex Offender Background Check Take?
How long it might take you to perform a sex offender background check will depend on how you approach the search.
If you only check the sex offender registry website in your state, the search will not take very long. However, you will not see whether an applicant might be registered in a different state.
If you decide to search the sex offender registries in all 50 states, U.S. Territories, and the District of Columbia on your own, the process of locating and searching each individual registry can take days or weeks while also taking your attention away from other important work tasks.
The best way to conduct a sex offender registry search is to work with iprospectcheck. We have access to reliable databases and criminal records researchers and can quickly perform national sex offender registry searches and criminal histories, returning reports to you in as little as a few hours.
iprospectcheck: Your Trusted Partner for Fast, Accurate, Compliant Background Checks
Completing pre-employment background checks for all of your candidates is a great way to protect your business and find great employees. Depending on your business, you might benefit by including a sex offender registry search as a part of your comprehensive background screening process.
At iprospectcheck, we perform FCRA-compliant employment background checks using the latest technology and comprehensive access to databases in every state. We return reports quickly to our clients, allowing you to receive the information you need within a few hours up to a couple of days. As a part of your background check services, we run nationwide sex offender registry searches.
Contact iprospectcheck today to schedule a free consultation and to obtain a no-obligation quote.
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.