An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

5. T HE L IMITS O N U SING M EGAN ’ S L AW W EBSITE I N M AKING E MPLOYMENT D ECISIONS The federal Megan’s Law authorizes local law enforcement agencies to make information available to the public regarding registered sex offenders. The California Megan’s Law website also provides users with information on registered sex offenders. Users may search the website by an individual’s name or by geographic area. Since the Megan’s Law website became operational, questions have lingered as to how individuals and businesses may use information obtained from it. Generally, California’s Megan’s Law allows information regarding registered sex offenders to be used to “protect a person at risk.” 228 However, the law does not allow information obtained from the website to be used for several other purposes, including employment, education, benefits, privileges, or services provided by any business establishment. Violators may be liable for actual and treble damages, or a civil penalty not exceeding $25,000. 229 In Mendoza v. ADP Screening and Selection Services, 230 William Mendoza filled out an application for employment. His prospective employer then hired ADP, an employment services contractor, to conduct a pre-employment background check on Mendoza, which included searching for Mendoza on California’s Megan’s Law website. ADP found Mendoza on the website and reported this information to the prospective employer. Mendoza was not hired by the employer. Soon after his rejection, Mendoza sued ADP, claiming that it violated California’s Megan’s Law by using this information in making an employment decision. In response to the suit, ADP argued that it was not engaging in “use” of information from the website because it was only providing the information to a prospective employer. The Court agreed with ADP. Although the term “use” is not defined in California’s Megan’s Law, the court relied on the law’s legislative history to determine that the California Legislature recognizes a distinction between “the ‘use’ of sex offender information and the ‘reproducing’ or ‘publishing’ of such information.” Therefore, because ADP was merely republishing Mendoza’s information, the Court found that Mendoza could not show a probability of prevailing in his suit against ADP. The Court also found that ADP’s reproduction of information from the Megan’s Law website was commercial speech activity protected by the First Amendment. Interestingly, although the case did not directly address the use of information from the Megan’s Law website by employers, the Court did note that employers could make a strong argument that they have a duty to protect their employees from sexually violent predators.

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