You Hired a Sex Offender: Now What?
Let’s say you’re an HR manager. One morning, you sit down at your desk and see a note that was left anonymously for you. It’s a page from the sex-offender registry — and it just happens to have the not-so-smiling face of one of your recent hires.
Yes, somehow it happened: you hired a sex offender.
What should you do when you realize you’ve hired a registered sex offender?
Immediately you start second-guessing yourself. Why did this happen? Is this really the same person? Have I put anyone else in jeopardy? Before you put too much energy into determining why, I’d suggest you take a more constructive route with the following steps.
- Confirm that the employee is listed on your state’s Megan’s Law registry by conducting a search for “Megan’s Law” + “state.” FYI, Megan’s Law refers to the requirement for each state to publicly disclose information about convicted sexual offenders.
- Identify the nature and date of conviction.
- Inform the employee that you recently made the discovery of their conviction, that you’d like them to provide their side of the story (as well as their perspective on why they should continue working in their current role), and that you’ll need to contact legal counsel for a full review.
- Contact legal counsel to conduct a full investigation:
- What legal obligations and limitations exist for taking employment actions?
- What threats are there to employees, customers and vendors?
- Are there concerns of negligent retention?
- Does the employee pose a risk to anyone per their job responsibilities and work environment?
5. Assess the employee’s role, including the amount and type of exposure to co-workers, customers and vendors, and eliminate any contact while reviewing the situation.
6. Take appropriate action based on what you learn and what you discuss with your legal counsel.
So, what are the risks of having a registered sex offender as an employee?
Some states limit how much an employer may consider an employee’s criminal history in hiring/firing decisions without calling it discrimination; however, employers may also be held liable for negligent hiring or negligent retention if they knew or should have known that a registered offender was working for them and the abuser causes harm. Some work situations are easier to diagnose than others: for example, a school would have reasonable cause to reject a former child sex abuser. But many circumstances are less clear, such as a landscaping company that has hired someone with a past of indecent exposure or an accounting firm with a nighttime maintenance man. The safest thing to do is to contact legal counsel to help assess the situation.
How to prevent hiring a registered sex offender
Simply asking applicants to check a box if they have a criminal background may not be legal in your state or municipality. (See a list of Ban the Box Laws by State and Municipality, updated June 2018.) In order to legally comply in all of these areas and still conduct pre-hire due diligence, make a conditional job offer that is contingent upon passing a background check. If there’s a hit, look at the job requirements and determine if the severity of the crime is relevant to the job. See how long ago it occurred and whether the applicant is a repeat offender. Allow the applicant to make a case for why their record should not be held against them for this particular position and consult with legal counsel if it’s not an easy case to defend one way or the other.
Also, be sure your employee handbook discusses your company’s zero-tolerance policy for workplace harassment and that you provide regular, annual anti-harassment training to your managers and staff. For questions about this or any other HR-sensitive topic, please contact our experts at HR@stratus.hr.
There’s a delicate line that employers have to carefully walk when it comes to providing a safe work environment for employees and making employment decisions based on criminal histories.
Author Cariann Lieske helps businesses with all kinds of HR questions. She initially published this article at Stratus.hr on October 1, 2018.
