Q: I have a question on employers using Megan’s law website for employment purposes What case law would cover this area.

A: First, it seems you are operating under an assumption that an employer is limited to looking only seven years into your past. That is not accurate. An employer can go back a whole lifetime to research a prospective employee. The 7-year limitation is for commercial background searches only.

Second, there are exceptions to the general prohibition of use of information on the 290 registry. Those exceptions include occupations that would bring the employee in close contact with potential victims, usually being minors, dependent elderly or disabled persons, or the like. If your job will regularly bring you into contact with those kinds of people then the employer is not only allowed, but is duty bound to check the registry.

Third, if the reason for being placed on the 290 registry is a prior conviction, then the California "Ban the Box" law is implicated. That law makes it unlawful for employers with at least five employees to ask about or consider the conviction history of an applicant before the applicant receives a conditional offer of employment, and consider, distribute, or disseminate information about any of the following while conducting a criminal history background check in connection with any application for employment: (a) an arrest that did not result in a conviction, subject to limited exceptions, (b) referral to or participation in a pretrial or posttrial diversion program; and (c) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

Once a conditional offer has been made the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment. This assessment must justify denying the applicant the position by linking relevant conviction history with specific job duties of the position sought. In particular, the assessment would have to consider (1) the nature and gravity of the offense and conduct, (2) the time that has passed since the offense or conduct and completion of the sentence, and (3) the nature of the job held or sought.

Once the employer makes a preliminary decision that the applicant’s conviction history is disqualifying, the employer must notify the applicant of this preliminary decision in writing. This written notice must (1) provide the written notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer, (2) include a copy of the conviction history report, if any, and (3) provide an explanation that the applicant has the right to respond to the notice within at least five business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both.

The employer cannot make any final determination based on conviction history during this five business day period. If the applicant timely notifies the employer in writing that they are disputing the conviction history and is taking steps to obtain evidence to support this, the employer must provide five additional business days to respond to the notice. The employer must also consider any additional evidence or documents the applicant provides in response to the notice before making a final decision.

If the employer decides to deny an applicant based on the conviction history, the employer must notify the applicant of this in writing, and include a notification of any existing procedure the employer has to challenge the decision, as well as notification of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.

Good luck to you.

A: Mr. Pedersen is a very smart employee rights attorney and his response pretty much says it all. Well done Neil.

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