Megan's Law (California)

System

Recently confirmed rumors that a probationary supervisor (EE) is registered on the Megan's Law website as a high risk offender. (Probation ends 2/08.)The 1989 conviction was for lewd and lascivious conduct with a child under 14 years of age--a prison sentence. The intent of the web site is to provide information to "those at risk," e.g., children under 14 years of age. We are a State department, and our business does not involve work with children. As the employer, we are to refer any concerned employees to the web site, and caution them that this person is "protected" from discrimination, harassment, etc., in the work place. According to this law,an employer cannot use the fact that an employee is on this web site to affect their employment (unless they pose a risk to children); in essence, they have the right to be employed. CA's Government Code allows for termination of a State employee who is convicted of a felony. If this EE continues to work (and ultimately passes probation), I expect his direct reports will have problems being under his supervision. I do not see how such circumstances can be resolved, other than removing the EE from a supervisorial position, which cannot be done. Because he is still in a probationary position, I am inclined to recommend he be rejected on probation due to the discovery of the felony (confirmed by certified court records), rather than the fact that he is on the Megan's Law web site. I appreciate your input.

System

How old was the employee at the time of the offense? Do you normally disqualify individuals from employment based on convictions that occurred 18 years ago, even if the underlying offense may not be related to the ability to do the job?

Elizabetharess

If you fire do you have to give them an "adverse action" notice?

System

This particular individual is subject to a one year probation, which ends in February 2008. A rejection on probation is not considered an adverse action. The individual does, however, have the right to appeal the action to the State Personnel Board. It is his burden to show that the employer's action was somehow inappropriate, e.g., discriminatory, retaliatory, etc.

System

The employee was 25 years old, the victim 13 years old. This is a situation of "first impression" for the department; therefore, we do not have a "normal" approach for such matters. Even if the underlying offense is not related to the ability to do the job, this EE is a supervisor and I believe that we would be ensuring future problems that cannot be resolved by keeping him. We certainly cannot remove him from his supervisorial position. As such, I expect that once word circulates, most subordinate employees will refuse to take direction from this supervisor and request reassignment. From my viewpoint, there are no legally feasible alternatives that will resolve this matter: as a supervisor, he needs to supervise. As an employer, we do not want to subject employees to situations they find morally reprehensible. I have been advised by one of his supervisors that he is not performing at the expected level. If such unfavorable performance is documented, the ability to fail him on or before his probationary period ends is the most desirable outcome.

System

Um, if subordinate employees are refusing to take direction from a supervisor, shouldn't that be addressed by disciplining the insubordinate employees rather than getting rid of the supervisor?

What if you knew your employees were likely to be insubordinate to someone of a certain sexual orientation? Or gender? Or race? I understand that the felony conviction may not have the same protections as those classifications, but the presence on the Megan's law site does, and I think you're going to have a tough time distinguishing between the two, especially since your knowledge of the felony conviction was a direct result of the employee's presence on the site. I have a hard time believing that employers can get around the anti-discrimination provisions of Megan's law by claiming "we didn't fire him because of the website, we fired him because of the conviction that caused him to be on the website." If that were the case, the anti-discrimination protections in that law would be entirely meaningless. And we all know that it is a fundamental rule of statutory construction that a statute is to be interpreted so that no words shall rendered meaningless, redundant, or mere surplusage.

It seems that the anti-discrimination provisions in Megan's law may be somewhat at odds with the CA code regarding state employees, but who knows which law will trump which - do you want to be the test case?

Obviously if there are legitimate issues with this guy's performance that rise to the level of issues for which you would normally terminate a probationary employee, then you will have an easier solution to your problem.

System

Yes, subordinates refusing to take direction from this supervisor should and would, in theory, be disciplined. The quandry I see with this situation is that this will be a recurring issue with this supervisor. I can also see employees claiming a hostile environment, even if it does not reach the legally recognized definition of HWE. I recognize and wholeheartedly agree with your analysis pertaining to the DFEH protected classes and those on Megan's web site who, in effect, are similarly "protected"--thus, my dilemma.

I will be meeting with the immediate and second line supervisors to determine if the problems in his performance are sufficient to reject him on probation. Stay tuned.

marc

Did the EE lie on his application? I ask, because ours specifically asks about convictions and we do a background check. I would be surprised if your agency did not also ask this question and do the background check.

I also wonder about the termination for conviction since you hired the person with a pre-existing conviction. Does the conviction have to happen while employed or does the previous one also require termination?

Seems if you asked the question about convictions and he lied, there is your out. If you asked and he mentioned it and you still hired him - well, I think that is on the agency. Still - a conviction is a conviction and if you want him out, use it.

System

Last year the State Personnel Board revised the State employment application by moving the question of "Have you ever been convicted of a felony," once posed to all applicants to a new section stating, "Answer the following questions only if it relates to the job you are seeking." Job classifications requiring such disclosure would arguably be those with peace officer status. Other questions in that section pertain to clerical skills and a valid driver's license.

The SPB was concerned that too many individuals were being excluded from the interview process due to past felony convictions. It is my position, however, that the employer is not precluded from asking interviewees whether or not they have ever been convicted of a felony or a misdemeanor. In this situation, the individual did not lie on his application, because he did not have to answer the question. He, however, was not asked the question during the interview process. Additionally, the department is fairly new and has been working on its policies and procedures. To date, it does not have a policy regarding background checks, but is in the process of putting one together, which will have to undergo a "meet and confer" with the union. Clearly, this will be a long process.

In the meantime, I have been advising our managers/supervisors to ask the necessary questions. Because our department resulted from the consolidation of three other departments, there is a lack of consistency and understanding among the staff of what can and cannot be asked during interviews.

I am wary of proceeding with this matter based upon the conviction and prefer to focus upon his unsatisfactory performance during his probationary period.

marc

Thanks for clearing that up.

It sounds, however, like you are looking for a reason to get rid of the guy, but based on the original post, the reason is the conviction, not the performance.

System

Prior to our learning about the conviction, his immediate supervisor had already contacted the HR department about direction on how to address his performance problems in his first probationary evaluation. We have documentation to illustrate this timeline which will refute a retaliation claim.