When you find out that an employee of yours is on the local sex offender registry, it can come as a shock. Along with such a surprise discovery, many companies are unsure of what action to take, if any. Can they fire an employee solely due to a criminal record? Is the employee a danger to their coworkers? We’ll answer those questions and more.
In some cases, you may hear rumors about an employee’s status. Alternatively, coworkers of that employee may come forward with concerns. In the worst-case scenario, you might learn that an employee has assaulted or otherwise intimidated a coworker.
Regardless, you can’t trust rumors or accusations to confirm that an employee is a sex offender. Here are a few ways to confirm an employee’s criminal history.
The simplest way to check on an employee’s sex offender status is to do so online. The advent of Megan’s Law in the ‘90s publicized sex offender convictions. Today, online tools give the general population access to formerly difficult to uncover criminal records.
Each state has a Megan’s Law. The Megan’s Law tool shows you offenders in your area and outlines the crimes committed. Limitations exist with these tools, however, especially because you must perform a separate search for each state an employee has lived in.
A criminal background check includes an in-depth look at a potential hire’s history and background. While many counties or jurisdictions have court documents available online, not all do. And some that do require fee payment to access such records.
Therefore, performing an internal background check on an employee or applicant may not be feasible. A criminal background check, however, includes investigating court records and looking deeper into a person’s history.
Many states stipulate that an employer cannot dredge up convictions from ten or more years ago. Legislation in your area may bar you from even discussing older offenses with a potential hire or current employee.
Upon confirming that an employee or applicant is a sex offender, employers have a few options. Unfortunately, the first option is a moot point if the person is already on your staff. If it is a potential worker you are considering, however, you can simply not hire them. Read on for details on strategies for handling prospective employees and the legality of such decisions.
Whether you’re hiring someone or hoping to resolve current staff issues, discussing the situation with the employee can help. If it is legal to do so in your state, call the employee or candidate in for an open discussion. Ask for details—their side of the story—about the case and their lives.
Building a relationship with the worker can also help improve their work performance. After all, no staff member wants coworkers or their boss to be uncomfortable around them. People may still judge and hold their opinions but knowing up-front the details of the case can help quell gossip.
If you have other concerns about the employee—apart from their conviction—it makes sense to monitor the situation. Other employees may bring up concerns about inappropriate behavior or conversations. You may consider adjusting a staff member’s duties to avoid hostile work environment accusations.
Ultimately, however, you must have a legitimate reason to move a worker or change their duties. Otherwise, your actions can be perceived as discriminatory and therefore, unlawful.
If you were unaware that an employee was a sex offender, you might need to take action to avoid charges of negligence. For example, let’s say your business is in Maryland and contracts employees in, for instance, landscaping. In that state, your employee does not have to disclose to you that he or she is a sex offender.
Let’s say that one job requires the employee to work on-site at a daycare center for a few days or a week. It is their responsibility to inform you about their status and make accommodations for the work. In most instances, that would mean keeping the employee off the job site for the duration of the work.
States vary widely in their legislation on sex offender disclosure requirements. This makes it challenging to determine how to handle any one situation. Seeking legal advice is always helpful when trying to determine what action your organization should take (or not).
Many states limit what you can do with the knowledge that your employee is a sex offender. States like California, for instance, do not allow employers to use information from the database to “hire, fire, or demote” an employee or potential employee.
Even if you find out someone you wanted to hire is a sex offender, you cannot redact a job offer for that reason. And California is not alone in its attitude toward the registry details.
Plus, the only exception to this rule is protected businesses such as daycares, schools, senior centers, and hospitals. However, exceptions are relatively rare and can involve a lawsuit in some cases.
Some states are not as stringent with their rules as California. It’s worth looking into your state’s legislation on the matter before considering firing a staff member.
If you find out an employee (or prospective employee) is a sex offender, you cannot exclude them from your staff because of that reason alone (except in rare cases). One clear reason is that they lied about their status as an offender.
Lying on a job application is grounds for termination in most workplaces. If the application solicited criminal background information—and it was legal to do so—you can fire the person for such a lie. Most places of employment can fire employees at will. In short, you can fire someone for any reason as long as it’s not an illegal reason.
You may face litigation because of a disgruntled employee. It’s often best to consider legal assistance for your company when contemplating such a move.
For employers, finding and retaining quality team members is a significant challenge. Even more challenging is determining that your employees are qualified, not a threat to others, and capable of handling their job duties. Fortunately, background investigations can help address those concerns and more, making it easier to find good help.