California Case Protects Constitutional Right of Background Screening Firm to Report Sex Offender Registration

A California Court of Appeals decision filed March 23, 2010 held that a background screening firm has a constitutional right to report that an applicant has appeared on the Megan’s Law website (MLW) as a registered sex offender.  The Court further held that under the California law, the prohibition on the use of such information for employment does not apply where there is a person at risk.

In Mendoza vs. ADP Screening and Selection Services, Inc (CA2/8  B214653 3/23/10)(Certified for Publication) the California Court of Appeals, Second Appellate District heard an appeal from a job applicant who was denied employment apparently on the basis that he was listed on the MLW.  He sued the background screening firm alleging, among other things, that it was illegal to report his sexual offender status due to the California law that prohibited the use of such information for employment decisions.

The background screening firm defended on the basis that the California Anti-SLAPP statute protected its free speech.

  An Anti-SLAPP law seeks to protect parties from frivolous lawsuits when they exercise their First Amendment right to free speech.  The trial court upheld the background screening firm’s position. 

On appeal, the Court held that just because a background screening firm charges a fee for the service when it accesses, compilies, and republishes information, it does not deny a screening firm its constitutional free speech protections.  The Court noted that: 

We agree with the trial court that (the screening firm) made its requisite prima facie showing that, in publishing information disclosed on the MLW, it engaged in constitutionally protected speech on a subject of public interest. Indeed, the Legislature, in enacting the statutory scheme establishing the MLW, issued several findings which openly expressed the public’s strong interest in the dissemination of information regarding registered sex offenders.

 The Court further noted that there is a strong public need to create a safe workplace and that issuing employment screening reports is protected by the constitution.  Per the opinion:

We are also swayed by the public interest in safe workplaces, and in the liability which may attach to employers who fail to investigate prospective employees where prudence justifies such an investigation. Thus, as a foundational, broad-based proposition, we conclude that providing employment-screening reports is a constitutionally founded, protected activity within the meaning of the anti-SLAPP statute.

The Court also discussed the California law on sexual offender registration as part of the legal analysis as to whether the screening firm had a constitutional right to report the information.  The Court noted that the relevant portion of Penal Code Section 290.46 provides that: 

(l)(1) A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.

(2) Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited:

(E) Employment.

The Court rejected the argument that the law prohibited the use of information from the Megan’s Law website when there was a person at risk just because it was related to an employment decision.  The Court ruled essentially that the “risk” part was independent and could be provided regardless of whether it was intended for an employment decision.

The Court also noted that the background screening firm did not utilize the information.  It was used by the employer and only provided by the screening firm. The Court indicated that:

Although the legislative history in the record and the parties’ briefs is sparse, we are satisfied that the MLW statute is not intended to create liability for damages on the part of employment-screening businesses who access, compile, and republish information disclosed on the MLW, and that the statutory liability created by the MLW statute should be limited to employers who use  information disclosed on the MLW as a basis for an employment decision.

This of course still leaves open the issue of what is meant by the term “person at risk,.”and when can an employer utilize such information.  As noted in a previous blog by Employment Screening Resources: 

Until a court provides a definition (of person at risk), employers are well advised to apply a common-sense approach by looking at risk factors associated with the nature of the job. For example, there is a widespread industry agreement that vulnerable individuals are at risk, such as the young, the aged, the infirmed, or the physically or mentally disabled. In addition, people inside their own home are likely to be at greater risk, since it is harder to obtain help, so home workers may be considered a population that works with people at risk.  Another category is workers that operate under some sort of badge or color of authority or who wears a uniform.  In that situation, a person may let their guard down.  Until a court makes a clear decision, employers should make an effort to determine if there is a good faith belief that it is reasonably foreseeable that a member of a group at risk could be negatively impacted if a sexual offender was hired.

Of course, if the underlying criminal record is discovered and otherwise meets the many complicated rules governing the reporting and use of criminal records in California, then the “risk” analysis is not needed, and the employer handles it like any other criminal record.

The case can be found at:

Please note that Employment Screening Resources does not offer or provide legal advice or opinions, and the above material is provided for educational purposes only. This particular case has additional issue, and anyone with questions should consult their attorney.