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California

CA: Can You Fire Someone For Being A Sex Offender?

[jdsupra.com 4/30/18]

It happens more often than you think. An employee in good standing is “outed” as being listed on a sex offender registry. His/her coworkers are up in arms. Now what? Can he/she be fired?

Given California’s relatively new “ban the box” law, employers are limited in how they can use criminal history in employment decisions. For current employees, once a conviction is uncovered, you can’t automatically fire someone for it. Rather, employers must make an individualized assessment to determine if the conviction has a direct and adverse relationship with the actual job. To do so, employers must consider:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and the completion of the sentence; and
  • The nature of the job held or sought.

This also means the employer must talk to the employee and get his/her side of the story.

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  1. Sunny

    In addition to the “Ban the Box” bill that passed last year*, Section 290.46(l)(2) expressly prohibits the use of information disclosed on the Megan’s Law website for purposes relating to health insurance, insurance, loans, credit, employment, education, housing, or benefits, privileges, or services, provided by any business establishment. The statute provides that a user is authorized to use the website’s information “only to protect a person at risk,” who is defined by Penal Code section 290.45(a)(8) as a person who “is or may be exposed to a risk of becoming a victim of a sex offense committed by the offender.”**

    The wording of the statute is specific about the source of the information. If a registrant reveals his or her status or if the underlying offense came up in a lawful background check, it would likely be legal for the employer to fire that person. However, if the company got the information from the Megan’s Law website, whether directly or indirectly, and then fired the employee, it would likely be illegal and the statute provides for recovery of damages and fines. There are already a number of protections regarding background checks, which by law cannot extend more than 7 years into the past. The new “Ban the Box” law also provides for an appeals process following adverse action resulting from a background check.

    It’s my understanding that the “person at risk” provision has been interpreted very narrowly to such things as someone working in a daycare, but not incidental contact:

    “Registrants whose sex offense conviction was for a crime where the victim was a minor under age 16 cannot be an employer, employee, independent contractor, or volunteer with any person, group or organization where the registrant would be working directly and in an unaccompanied setting with minor children on more than an incidental and occasional basis or have supervision or disciplinary power over minor children.”***

    *AB 1008
    https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1008

    **CA Penal Code 290.46(l)(2)
    http://codes.findlaw.com/ca/penal-code/pen-sect-290-46.html

    ***Megans Law Additional Laws
    https://www.meganslaw.ca.gov/Docs/additional_laws.pdf

    • New Person

      “There are already a number of protections regarding background checks, which by law cannot extend more than 7 years into the past.”

      Odd. On a recent livescan background check, my conviction still shows after 7 years along with the line that the case was set aside and dismissed via 1203.4. Also, being on the registry exists.

      I was denied a job solely because i’m still a registrant. Note, I was recommended for the job, but HR said no.

      • Sunny

        http://lawprojectla.org/fcraviolations.html

        There are some exceptions, like for government jobs or positions that require a license:

        “If you have been instructed to have a livescan for your state license or job, your criminal background will be checked through the California Department of Justice and not a commercial background checking company or commercial data broker. If you are being livescanned for a position, FCRA and ICRAA do not apply to you.”

        • M

          i was also just denied for an apartment based on my 311.11(a) posession charge that is just over 7 years old that showed up on the background check they ran. i’m not sure if this falls into this, or if it’s just employment

    • New Person

      I followed the AB 1008 link and it talks about convictions. So what if you have a 1203.4 and you’re a registrant? You’re SOL b/c the government moved the goal posts only for registrants. You need a 1203.4 AND a COR. Crazy how unequal treatment that is amongst convicts.

  2. Trish

    Sounds great! But means nothing if law is not enforced ! I know the law is working very hard to ensure discrimination is not does not and will not happen! Can you ask yourself are they serving all the public or just the victims ! Remember , once you are punished .!…..it cannot and should not be used against the person ! Since the government caused the legal problems ! They should protect all parties… that does not mean an ex offender has a criminal contagion that might spread to other’s or ex offenders could do something wrong just like other citizens do wrong ! Therefore giving special right to prejudge ! This is why the public does not have a rite to know……because they are not judge, jury and executioner ! If you allow prejudice….! You are wrong ! If a new employee stops discrimination by lying on application are they not justified ! Now ban the box is proooooof of discrimination ! And no ! Working with police or children or whomever should not be an automatic bar or restriction ! …do the crime do the time ! Not , We lock you out ! because your past stands out ! We the people should watch and work with all people…, With caution and good will no mater …who you are ….where you’ve been or what you’ve done ! As long as they continue to do right! And when we ! Anyone does wrong, the law is our teacher ! Not persecutor !

  3. Henry

    I wonder what it would take to lower the age we could get Social Security for those of us on the list. It would at least provide some sort of income even though it’s not much, but it would be something coming in. Or maybe we should be able to claim disability.

    • Tim Moore

      Maybe a group can get together and get some sort of industry going to support themselves.

      • Henry

        That’s an excellent idea. It would only two of us communicating together for that to happen and others could share their idea’s as well. In no time we could have a community that could produce a product and/or service that could be offered. We would be creating our own jobs. The African American’s did that same thing when America was discriminating against them. They thrived!

        • Tim Moore

          Yes, the Jews had to do that in medieval Europe. They couldn’t own land. The poor Christian peasants who had land, were prohibited from charging interest because of religious usury laws. So about the only thing left for Jews was to wander and trade stuff they picked up along the way. They became merchants, selling goods and loaning money to those Christians who now had collateral to start enterprisesm and some on bothnsides became very wealthy. I am not into status and wealth myself. I would like to see stability, self fullfillment and empowerment for greater number of registrants. If that doesn’t happen, the registry will continue, and the longer it lasts the harder it will be to fight. Once something becomes set in the culture, like the caste system in India or elitism in America, things become extremely difficult to change. I think we are capable of starting some enterprise, if we put heads together.

  4. Someone who cares

    A normal background check should only go back 7 years, expunged or not. Unfortunately, a live scan will show everything including arrests that did not lead to conviction, expunged cases, misdemeanors, etc. This is for all cases and not just sex offenses. Also, it seems court records show as well. Not sure if they ever get sealed. Does anyone know?

    • New Person

      Now here’s a point about Livescan and 290, it shares that information.

      Under 1203.4, there are three immunity components:
      1) conviction set aside
      2) accusation or information dismissed
      3) all penalties and disabilities will be released from conviction

      If 290 is being shared, then accusation and information is being disseminated – thus negating this contractual obligation set for via 1203.4.

      This is going to be evidence for my future lawsuit that 290.5 and 290.007 are violating obligations set forth in 1203.4 and protected registrants with 1203.4 under Kelly v Municipal decision.

      A conviction denotes the need to register and be under police surveillance. Once no longer convicted, then it negates the need to register as well as negates the need to be under police surveillance.

  5. Q

    Yet another law. I was “outed” in 2006 and haven’t been able to obtain comparable employment since. I wasn’t on the “website” but I was on the offendex website and didn’t even know it until I was told by the registration officer. No matter the law, there are too many ways around it. All one has to say is a more qualified candidate was chosen for the position or something similar. I think there is any number of ways around any law.

  6. Debo

    CA is due for a socialistic reality check.

  7. JAB

    These laws do nothing to protect registrants. If you are found on the website and lied on your application, they will fire you. Regardless that they have no proof of your conviction( relatively speaking it’s over 7 years), they use Megan’s law each and every time. Had it happen to me and I was let go. But I didn’t give up. They illegally used Meghan’s law to see I was registered! I obtained an attorney and sued! We settled out of court and I won. All major background companies use sex offender checks. There needs to protection in place not allowing this. There is a huge loophole regarding the “person at risk issue”, and that needs to be closed. If you are doing livescan, everything will show. You are not protected under FCRA 7 years. This Involves home health aides, volunteering, nurses, all licensed jobs, and schools. We need to put an end to these background companies using third party sites, whom in my opinion have copied all names off the original Meghan law site, and selling them off to big companies for background checks. Same goes for housing. If your living in Ca, not on parole/probation, over 7 years, they should not be allowed to deny you housing!! I’m at a loss how they get away with it! Don’t give up!

    • Mr. TDAL

      The mapping function relies on census info. That used to be protected.

  8. Frightened

    Not currently on the website because I am an unlisted offender but, when the tiered law goes into effect, the Static-99R/SARATSO will put me on the website. Quite worried about how that’s going to effect my job (four years employed with the same company), whether I will be kicked out of my home (have lived here for four years as well), and whether I will be recognized and/or shunned in public. Worse fear is that I am fired, kicked out of my home, and left homeless and unemployed. I am a hard worker at work, I think my bosses and coworkers like me (i.e. I always get high evaluations), and I have never been late with my rent payment. But I suppose that can all change when my status on the registry is published in a few years?

    Everyday I worry because while I would otherwise be placed into Tier 1, the dumb Static has placed me ONE point too high because I was 1. young [23 y/o] and 2. my offense from eight years ago was non-contact. Seems too much for a first-time offender (with NO OTHER criminal history). There is always a sense of uneasiness that my current situation in life (even though I am barely getting by paycheck to paycheck) is only temporary.

    • Rick

      You will not be the only one screwed over by that Static sham. Sadly almost everyone is accepting it as truth.

  9. Double A

    I recently went to a job interview at a law firm. They practice family law. I saw their posting online, but went to their office to drop off a cover letter and resume in person. The following week I was granted an interview.

    Before the interview I was given an application to fill out. On the application it asked about criminal history. I was torn. I probably shouldn’t have disclosed my past but I figured they would have found out eventually.

    I didn’t get the job. The attorney thanked me for being honest. Her reason for not hiring me was she was looking for someone with more experience. She did tell me I was personable and knowledgeable about certain aspects of family law. She said if she needed an entry level paralegal she would have hired me.

    • Tim Moore

      I always told the truth and got the same reaction. Screw it, I am not going to work for someone long term and have to spend all my effort trying to prevent the “what if” of my employer finding out. I just decided to enter the gig economy and work for myself and answer to myself. I could have done better as a wage employee if I kept looking, but at least I am not a wage slave to someone who believes it is OK to put people on shaming lists and destroy a whole population’s ability to seek redemption and pursue happiness. I won’t knowingly give support to those who are profiting off the registry.

  10. Trish

    The EEOC should not have to shove laws in slow and stupid people’s faces ,,,the organization does not neeeed to spell out every bias, discrimination and prejudice acts that have been, is happening, or will happen to man kind ! But non the less we live here in the most screwed up laws on Earth ,,,,,😠 America ! Is anyone working with them ,,,presenting evidence that show the EEOC should be involved?

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