Excerpted from Nevada Employment Law Letter, written by the law firm Lewis and Roca LLP http://www.HRhero.com/nvemp.shtml?HLe

We've all heard about the cases of Jessica Lunsford, Sarah Lunde, Jetseta Gage, and Dru Sjodin, who were abducted and murdered by convicted sex offenders who had moved into their neighborhoods.

We've also heard quite a bit about online sex-offender registries designed to prevent tragic cases like those from happening. The FBI maintains a list of links to state websites where citizens can access information about convicted sex offenders in their communities:
   http://www.fbi.gov/hq/cid/cac/states.htm

Imagine how surprised and dismayed you would be after discovering one of your employees listed on the registry.  Now that you know he's a convicted sex offender, what can you do? What should you do?

Sex Offenders Usually Aren't a Protected Class

Most states are "at-will" employment states (except Montana), meaning both you and your employees have the right to end your relationship at any time for any reason unless you have an agreement with express terms and conditions covering its termination. Of course, as with all things involving lawyers, there are a few exceptions.

For example, you're legally prohibited from taking any adverse employment action against someone because of his race, gender, age, disability, national origin, sexual orientation, or another legally protected characteristic.

In many states, however, a person's conviction record, including any convictions for sex offenses, isn't among those legally protected characteristics.

But a growing number of states like Wisconsin, Massachusetts, and California have adopted laws prohibiting employers from considering an employee's sex-offender status when making certain employment decisions, so be sure to check your state's law on this topic.

Consequences of Inaction

If you discover one of your employees listed on the sex-offender registry and decide to retain him, you will be faced with additional issues. For example, if an employee you know (or should have known) is a sex offender commits a sexual crime on the job, you may be liable to his victim for negligent hiring, negligent retention, or negligent supervision.

Because of the new online registries and the resulting availability of information about sex offenders, the "How could we have known?" defense is less likely to succeed.

That's even truer when there's a link between the employee's previous assaults and his current job duties.  For example, if you place an employee you know has sexually assaulted a teenage girl in a job that will bring him into contact with teenage girls (e.g., at a fast-food restaurant or movie theater), you will face liability if he harms a young girl at work.

So what can you do to reduce the possibility of being confronted with that situation?

Best Defense is Strong Offense

One of the most effective ways to avoid the surprise of discovering one of your employees on the sex-offender rolls is to use effective preemployment screening so you don't hire potential problem employees in the first place. An effective and thorough employment application is the best place to start. While questions about an applicant's arrest record should be avoided, inquiries about criminal convictions are generally acceptable (again, check your state's laws).

You should also make sure your managers and supervisors are trained to conduct effective interviews. In addition to the initial application and interview process, background screening is an effective way to reduce the possibility of hiring at-risk employees.

State law requires employers in certain industries (like education, childcare, medicine, and gaming) to conduct background checks, but routine checks of job applicants are a good policy for all employers regardless of your size.

Small businesses must be even more cautious because many sex offenders won't even bother applying at large companies for fear they will conduct extensive background checks. Instead, they often seek employment with small companies they assume won't make the proper inquiries.

The perception that only large employers can afford to perform background checks is incorrect. There are many companies that can provide thorough background checks to small businesses at an affordable price.

Small employers may feel that background checks are too expensive, but they're certainly worth the price when you consider a likely alternative - finding yourself facing a negligent hiring lawsuit.

Copyright 2005 M. Lee Smith Publishers LLC. This article is excerpted from *Nevada Employment Law Letter.* Read more about the print newsletter and the Nevada attorneys who
write it:http://www.HRhero.com/nvemp.shtml?HLe

The contents of NEVADA EMPLOYMENT LAW LETTER are intended for general information and should not be construed as legal advice or opinion.