California Labor &
Employment Law Blog
Mar 29, 2010

Employment Screening Company Has Free Speech Right to Republish Sex Offender Information

Topics: Court Decisions, Employee Hiring, Discipline & Termination

Employers frequently use third-party vendors to conduct background checks and screening services before hiring prospective employees. In Mendoza v. ADP Screening and Selection Services, Inc., a California court held that an employment screening service has a constitutional free speech right to republish to employers information contained in a "Megan's Law" website ("MLW") with respect to sex offenders notwithstanding the statutory prohibitions on the use of such information in the employment context.

Mendoza filed a complaint against ADP Screening and Selection Services, Inc. ("SASS") alleging that a prospective employer denied him a job because the employer had received a pre-employment background check conducted by SASS that identified Mendoza as a registered sex offender on a MLW. The statute governing the MLW prohibits the "use of any information that is disclosed [on the MLW] . . . for purposes relating to . . . [e]mployment." Cal. Pen. Code § 290.46(1)(2)(E), (4)(A). SASS filed a special motion to strike Mendoza's complaint pursuant to the anti-SLAPP statute, which provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of . . . free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Cal. Code Civ. Proc. § 425.16(b)(1). The Court of Appeal upheld the trial court's ruling granting SASS' anti-SLAPP motion because providing employment screening reports is a "protected activity" notwithstanding the fact that the activity was undertaken for profit. The Court found that SASS had engaged in constitutionally protected speech on a subject of public interest because of the public's strong interest in the dissemination of information regarding registered sex offenders to preserve safety in the workplace and to prevent liability to employers who fail to properly investigate prospective employees. While the California Supreme Court previously ruled in another case that a defendant may not use the anti-SLAPP statute to strike a complaint where the defendant's underlying conduct at issue was illegal, the Mendoza court interpreted "illegal" to mean violation of a criminal statute, not action which would subject the defendant to civil remedies. Finally, the Mendoza court held that SASS was entitled to strike Mendoza's complaint because Mendoza could not, as a matter of law, prevail in a claim against SASS under the MLW statute at issue because SASS, in simply accessing and republishing information it found to the prospective employer, did not "use" that information in making an employment decision. Mendoza's claim against SASS for violation of the California Investigative Consumer Reporting Agencies Act ("ICRAA," Civil Code § 1786.2) also fails because registered sex offenders are not a protected class for purposes of federal or state equal employment opportunity laws. Of significant note, however, the Court stated that Mendoza could potentially allege a violation of Penal Code § 290.46 against the prospective employer.

While the Mendoza decision is good news for companies in the business of conducting pre-employment background checks, employers must proceed with caution in requesting and using information with respect to registered sex offenders contained on a MLW. If you have any questions about the proper use of background checks in the pre-hiring process, please contact us.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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