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Should your background checks include sex offender registries?

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in Employment Background Check,Hiring,Human Resources

Employers can find out much more about prospective employees than they could just a few years ago. A wealth of information is just a Google search away. There employers can find an applicant’s postings to Internet chat rooms, personal web pages or even Facebook.com profiles.

One sort of “facebook” may be of particular interest to some employers: the government’s sex offender registries.

Since the federal government passed “Megan’s Law” in 1996, states are required to keep a publicly accessible web site that lists sex offenders and shows their pictures and home addresses.

Megans-law.net maintains a nationwide directory of state sex offender registries, as does the Klaas Kids Foundation.

But should employers use any information gathered there when making a hiring decision, and what are job applicants’ rights?

Check state laws

Each state’s law is different. That means employers must check the rules before using sex offender registry information. For instance, California law prohibits employers from searching for a job applicant’s name on the registry unless they can demonstrate they are doing so to protect a “person at risk.” But the law doesn’t clearly define “person at risk.”

Employers in most states can—and probably should—scan the registry if an applicant will work around children or the disabled on the job, or will work unsupervised in people’s homes.

(In fact, employers hiring for these types of positions shouldn’t stop with the sex offender registry. A criminal background check to see if the applicant has convictions for violent crime is probably in order as well. If hiring for positions handling money, employers should check for convictions such as theft, embezzlement or theft by deception.)

Notification requirements

Several states require employers to notify applicants if they plan on checking a sex offender registry. Again, laws vary by state—a common regulation requires providing a public record to the applicant within a certain number of days.

Notification requirements generally follow those required by the Fair Credit Reporting Act, which applies when employers access an applicant’s credit report as part of a background check. Under the FCRA, employers must:

  • Inform the applicant, before obtaining the report, that a credit report is part of the hiring procedure.
  • Obtain permission from the applicant to obtain the report.
  • Provide a copy of the report to the applicant before making any hiring decision.

Notification requirements allow applicants to challenge information in credit reports they believe to be inaccurate. Presumably, information in the sex offender databases is accurate, but that battle is between the applicant and the state.

Other convictions

Always check state law to see how you can use criminal convictions when making hiring decisions. Most states have a statewide criminal record database, which can be searched—usually for a fee. Call your local police department to find out what state agency handles criminal records in your state.

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