We did a background check on an applicant and it came back that he was a registered sex offender. Now we do not want to hire him. Are there any problems with withdrawing the offer of employment?
Yes, there are problems withdrawing an offer of employment on the basis of information obtained from Megan’s List.
Megan’s List was designed to be used by parents to alert them to home addresses in their neighborhood where registered sex offenders resided. It never was intended for, nor should it be used by, employers for employment purposes.
In California according to Penal Code Section 290.46 (l)(2)(E), use of this information for employment purposes is prohibited. There are stiff penalties for an employer that uses this information as indicated in Section 290.46 (l)(4)(A):
“(4)(A) Any use of information disclosed pursuant to this section… shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney’s fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).”
Civil Action for Misuse
In addition, if it is determined that there is a common practice of using this information, then the Attorney General may bring an action as indicated in Section 290.46 (l)(4)(B)(2):
“(4)(B)(2), the Attorney General, any district attorney, or city attorney, or any person aggrieved by the misuse is authorized to bring a civil action in the appropriate court requesting preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern or practice of misuse….”
Authorization versus Use
It is important that an employer understand the distinction that exists between an applicant authorizing a background check and an employer being able to use that information, particularly where the law prohibits the use of that information.
Since it is difficult to ignore information once received, it is a better practice not to obtain the information in the first place. An applicant who is denied a job based on the Fair Credit Reporting Act must be provided with a copy of that information.
At that point the applicant would know the reason he/she was denied employment and could obtain an attorney and file legal action against the employer, which may subject the employer to actual damages and attorney fees, exemplary damages, or a civil penalty.
Employers who feel strongly about this issue should consult with their legal counsel.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.