Background Checks and Sex Offender Information
Over the past few years employers have been using thrid-party vendors to conduct background and screening services before hiring employees. The practice is a good one because it could eliminate hiring troublesome individuals and prevent “negligent hiring” lawsuits. A recent case, Mendoza v. ADP Screening and Selection, a California court found that ah employment screening company has a right to republish to employers information contained in a “Megan’s Law Website” with respect to sex offenders although there are statutory prohibitions against the use of such information in the employment context.
Let me provide a caution on this issue. This case is appears to be based upon a claim of defamation based on the fact that the screening company provided the information that they found to the emplloyer. They found the applicant’s name on Megan’s Law Website. Employer’s have to be careful. The court’s have previously made it very clear that they do not want employers using the Megan’s Law Website for making hiring decisions. And they certainly do not want employees visiting such sites looking for information on co-workers. We have had some of our non-profit clients who interact with children inquire about after acquired information given to them by either an employee who has visited the ML website or from an “anonymous” caller. I think these employers have a stronger duty toward the protection of the children and should inquire of the employee as to the veracity of the information received. If he admits to falsifying his application (convictions) he could be subject to termination for falsifying a work application. If he is in denial, I think his information should be run through the Department of Justice for a second time. Just for the non-profit to cover their bases.
Technology is changing every day. With it comes the ability to search out individuals on the internet. Employees spend company, and personal time, engaging in such behavior. I believe employers need to have a policy in place cautioning their staff not to participate in office gossip if they find out negative information about co-workers. They may subject themselves to liability (defamation claims) if the information is wrong.
