Sex Offender Background Check Liability
When employers fail to perform a sex offender background check, they can be liable for any offenses that are committed under their supervision.
Injury Lawyer Team provides compassionate, trauma-informed legal representation to survivors of sexual assault and abuse perpetrated by registered sex offenders. We will hold negligent individuals and agencies liable for failing to fulfill their obligations, putting you at risk. Contact us today for a free consultation about your legal options.
What Laws Govern National Sex Offender Registry Standards?
The Adam Walsh Child Protection and Safety Act is a federal law designed to protect children from sexual abuse, abduction, and exploitation. This law created the national sex offender registry, managed by the US Department of Justice. It also strengthened background check laws for employers in certain professions, such as public service and caregiving (42 U.S.C. § 16901).
Part of the Adam Walsh Child Protection and Safety Act is the Sex Offender Registration and Notification Act (34 U.S.C. § 20901 et seq.). This standardizes the sex offender registry, though state laws may be stricter, and each jurisdiction may have its own database.
This national database is accessible at the Dru Sjodin National Sex Offender Public Website (NSOPW). Prior to this public website, each state maintained its own registry, making it harder to access. The searchable database covers all 50 states, the District of Columbia, the U.S. overseas territories, and the territories of federally recognized Indian tribes.
Sex offenders are required to provide the following information to their local state or territorial registry:
- Name and any aliases
- Age and date of birth
- Height and weight
- Physical description, including tattoos or scars
- Current address and any associated addresses
- Convictions and registration status (Tier I, Tier II, or Tier III)
- Year of convictions
- Current photograph
A search of the public website provides a link to the state or territorial registry. Some states will provide other information, such as the victim’s age, registration codes, whether there are active warrants, and the specific jurisdiction where the crime occurred.
In many cases, sex offenders are not allowed to live within a certain distance of places where children may be present, such as playgrounds. They may also be prohibited from interacting with minors other than immediate family.
While an unprecedented resource, the national registry is not perfect. For example, some states prohibit searches for sex offenders by geographic area, meaning someone must know the person’s name and date of birth. Employers must verify any information obtained from these databases and should report errors.
When Should Employers Perform a Sex Offender Search?
Certain employers are required by federal and state laws to conduct background checks during the screening and hiring process. They must refuse employment to any applicant with a history of crimes against vulnerable people, including children and the elderly.
School Districts: Any person on the sex offender registry should not work in the education sector. Principals and administrators should make every possible attempt to reduce the risk of school sexual abuse, including checking both national and state resources for registered sex offenders.
Daycares: Most sex offenders are required to limit contact with children. Unfortunately, daycares may not think to perform a sex offender search because 92% of daycare workers are women, and around 93.8% of convicted sex offenders are men. This may lull institutions into a false sense of security, assuming that hiring women will prevent daycare sexual abuse.
Nursing Homes: Unfortunately, the true scope of nursing home sexual abuse is hard to assess, as many victims never disclose. However, hundreds of cases are reported every year, making it essential that administrators perform a sex offender search before hiring anyone.
Correctional Institutions: Federal law, specifically the Prison Rape Elimination Act (28 CFR § 115.17), requires correctional facilities to conduct background checks. If they fail to do so, a survivor can file jail sexual abuse lawsuits for negligence.
Juvenile Detention Centers: As with adult prisons, the law prohibits sex offenders from working in juvenile detention centers. If we determine that the defendant was on a sex offender registry, we can file juvenile detention center sexual abuse lawsuits.
Public-Facing Positions: Bus drivers, taxi cab operators, hotel employees, and retail managers should all be screened, as they interact with a wide range of people daily.
Unsupervised Roles: Anyone on the sex offender list should not be allowed unsupervised access to people or to enter their homes. Examples include building supervisors, maintenance workers, janitors, and contractors.
Trust-Based Positions: Employers in finance, management, HR, law, or healthcare must screen their applicants carefully, as sex offenders may abuse their position of authority. This includes police officers and other officials.
What Are the Legal Consequences of Hiring Registered Sex Offenders?
Federal agencies and the US Supreme Court have regularly upheld the constitutionality of public sex offender registration, including in the case of Smith v. Doe. In that case, Justice Anthony Kennedy noted that sex offenders have a high rate of recidivism and pose “grave concerns” to the public.
Due to this, employers have a legal and moral obligation to reduce potential danger, particularly for vulnerable demographics like minors and the elderly. A jury may view employing a sex offender as gross negligence, especially if this information is publicly available.
However, some jurisdictions provide incomplete data to the national registry, and the information on the website may be outdated. The offender may also assault someone while employed and become a sex offender. If an employer learns that an individual is required to register as a sex offender but fails to terminate them or restrict their access to vulnerable people, then they can be held liable for negligent retention.
How We Can Use the Sex Offender Registry as Evidence in a Lawsuit
If the predator’s name and conviction were on a public sex offender registry at the time of employment, then the employer cannot claim that they did not know about the offense.
Our firm will search the sex offender registry, including archival versions dating back to the start of employment. These archived versions can demonstrate that the information was publicly available during the screening and onboarding processes, thereby establishing the employer’s negligence.
Regarding negligent retention, we can review public records to determine whether the employer would reasonably have known that the offense occurred. Some states will issue bulletins to nearby schools, businesses, and playgrounds when a person registers as a sex offender. At the same time, police blotters and news articles can show that the information was available.
We may also subpoena business records for private communications discussing the sex offender. For example, an HR representative may have sent a link to a supervisor about a recent news case, or there may have been a conversation about the sex offender’s status. This would constitute gross negligence and recklessness, as it would be evident that the organization was aware.
Book a Free Consultation
Injury Lawyer Team represents survivors nationwide in sexual abuse lawsuits. We will use all available evidence to support your claim, including national and state sex offender registries and private communications.
We understand the sensitive nature of these investigations and will use all available legal recourse to protect your privacy throughout the case. Our Super Lawyers® work on a contingency fee basis: no fees unless we win.
As proud members of the American Association for Justice, we’re here to help you heal. Schedule a free and confidential consultation with a caring attorney by calling 866-757-6452 or using our online contact form.
All content undergoes thorough legal review by experienced attorneys, including Jonathan Rosenfeld. With 25 years of experience in personal injury law and over 100 years of combined legal expertise within our team, we ensure that every article is legally accurate, compliant, and reflects current legal standards.