As either a business owner or job seeker, the question of whether sex offenders have to notify their employers often comes up. Someone looking for a job may worry about potential employers passing judgment. Companies often concern themselves with existing customers’ (and clients’) perceptions, in addition to workplace safety. But what does the law say about sex offenders in the workplace?
Unfortunately, there isn’t a cut and dried answer to the question of whether sex offenders must notify their employers. In many states, employers cannot ask job applicants about their criminal background. However, conflicting advice makes it difficult to give blanket recommendations for either businesses or job seekers.
In most states, employers can ask job candidates about their criminal backgrounds. According to SHRM, 48 percent of employers surveyed said that they inquire about applicants’ criminal histories. Questions such as “Have you ever been convicted of a felony” often appear on job applications.
In most cases, employers can stipulate that applicants should disclose crimes from the past ten years on their job applications. However, employers tend to suggest a five-year limit on items like disorderly offenses in your criminal history.
If you live in a state that allows criminal history questions, you may feel tempted to lie to get the job. But even if an employer cannot use your conviction against you, they can fire you for lying if they find out later. Plus, they may conduct their own background check which red flags your history anyway.
Being up-front with employers is crucial if you hope to get an interview and even land a job. For many applicants with a criminal record, if the industry is unrelated to the conviction, you may still have a chance at getting a job offer.
Plus, with each state’s public disclosure policy on sex crimes, you may not be able to hide details for long. Public disclosure means that any person can seek out the information. A major concern is if a person attempts to conceal their conviction while applying for a job, only for coworkers to find out later. In such a situation, other employees may no longer feel comfortable in the workplace.
In most cases, probation officers and other support personnel will suggest that sex offenders disclose their treatment or parole status to employers. Recommendations likely vary on a case-by-case basis, of course. But being honest about past mistakes can help a job candidate show potential employers they are regretful and serious about changing their lives.
Especially if a person has restrictions on where they can go (such as modified house arrest scenarios), disclosure can ease the job search process. For example, if an employee needs to visit their parole officer at a specific time each month, it’s easier to manage such responsibilities if the employer recognizes the importance of the meetings.
A job applicant may not outright disclose their sex offender status. After all, who includes that type of information on a resume or in a cover letter? But there are ways an employer can find out about such convictions.
After the assault and death of a seven-year-old girl in New Jersey, the victim’s family and legislators agreed change was necessary. A convicted sex offender lived in Megan Kanka’s neighborhood and was responsible for her death.
Though laws at the time required tracking convicted offenders, there was no law saying the public needed to know about those movements. To remedy this, Megan’s Law went into effect in 1994, requiring public disclosure of sex offenders’ crimes and where they live.
Megan’s Law databases vary depending on the state, but all states have a form of registration for offenders. In short, any person—whether employer or employee—can visit their state’s registry and find details on the crimes a person has committed and their current city.
With so much information at our fingertips these days, it makes sense that hiring managers know a lot about their prospective employees’ backgrounds. From free searches of local court records to newspaper documentation of crimes, there are many ways to find out if an applicant has a criminal history.
Many courts charge for access to their records. Especially in larger counties or metropolitan areas, access to court records is challenging (and costly) to obtain. While journalists may report on crimes as they happen, knowing what the court records hold is a more reliable way to determine whether someone is a risk to your organization.
Fortunately, any company can outsource background checks on its employees, including criminal investigations. How you can use the information for hiring decisions depends on the specific conviction and the nature of your business, however.
Most sex offender registries are public information because anyone can access the databases. In short, a person’s publicized conviction for a crime becomes public knowledge after their sentencing. Therefore, applicants cannot reasonably expect to enter employment without the company knowing their history.
That said, many states have laws which limit employers’ abilities to use the information on public databases. For example, California limits the ability of companies to fire or refuse employment to registered offenders.
Despite laws surrounding employers’ use of public records to hire and fire workers, employers are also responsible for employee welfare to an extent. Though refusing a job to a convicted sex offender on that basis alone is illegal in many states, employees can also sue their employers for negligence in hiring or retaining offenders.
For example, “negligent hiring” and “negligent retention” both cover scenarios in which a sex offender enters and remains in an environment where others are unsafe. One employee may have a criminal record which includes violent assault. If a court decides that employees in the workplace are unsafe because of the offender’s status, an employer may be responsible for putting workers in harm’s way.
The benefits of background checks on employees range from peace of mind that you’ve found a solid candidate to less turnover due to firing inept staff. And despite laws surrounding disclosure of criminal histories, all companies can investigate job applicants prior to offering a role. Measures such as social media screenings, social security checks, and general background checks can indicate whether an applicant has any “red flags.”
Questionable work history, lack of qualifications, and an unprofessional demeanor are all indicators that a job candidate isn’t a good fit. Even without knowing an applicant’s criminal history, employers can make informed decisions on whether that person will be a good fit for a position.
Plus, using other factors—apart from a criminal record—to determine a person’s hiring eligibility makes the process simpler. It also means you aren’t breaking any laws, regardless of what state your business is in.
You may just have an uneasy feeling about a job applicant. But a search of public records may not provide the information you need to make a solid hiring decision. When conducting your own preliminary “background” check, you can often view social media profiles or scan public court records.
However, in states or jurisdictions without court records access, you may face costly barriers to getting the information you want. And if a prospective candidate has moved a lot throughout their career or life, good luck pinning down any past criminal convictions across the states.
Because of the limitations of online searches, you won’t always find the information you need on job applicants. And using Megan’s Law databases don’t always provide the whole picture when it comes to approving or denying a new hire.
The factors surrounding state law and sex offender hiring policies are so variable. Therefore, it’s impossible to give a single answer to the question of disclosure. However, no state denies employers the ability to perform a background check on potential hires.
A simple background check can indicate whether an employee is suitable for the business’ company culture. It can also prove or disprove an applicant’s qualifications for a role. Overall, background checks of all types are helpful measures for hiring departments looking for qualified individuals.