North State SHRM News & Legal Updates

I’m always glad when something I write stimulates debate and discussion; I just wish so much of it wasn’t ad hominem attacks.

Each of these comments, in their own inelegant and nasty way, took issue with my statement that if asked by a client, I’d advise not to assume the risk of an expensive negligent hiring or retention lawsuit by hiring or retaining someone who appears on a state sex offender registry. I stand by that statement 100 percent.

I understand that those impacted by sex offender registry laws have a deeper stake in this issue than I. They believe that these laws are overly broad, overly restrictive, and in need of serious reform. They are likely correct. They also, however, appear to misbelieve that I owe some kind of obligation to the employee (the registrant) to advise my client (the employer) to take those factors into account and consider the individual for employment or continued employment despite his or her registration status.

Thus, the comments seem to be grounded in a fundamental misunderstanding of the role of an attorney to his or her client.

My client is the employer asking, in this situation, about the legal risk of hiring or retaining a registered sex offender. As their attorney, my job is to evaluate existing laws so that I can advise my clients on the legal risks of various proposed courses of action — in this example, what can go wrong if they hire or retain a registered sex offender and that person recidivates at work. My duty is to the employer (my client) to provide the pros and cons, and lay out the risks, so that they can make an informed decision. I owe zero duty or obligation to the employee.

Do I feel badly that our sex offender registry laws are likely broken and need reform? Absolutely. Do I understand that these laws might make it difficult for some otherwise deserving folks to find employment? You bet.

But my obligation is to my client, the employer making the hiring or firing decision, not the employee impacted by that decision. The registrant, of course, is free to engage his or her own lawyer to present the best case for employment. But that best case won’t come from me. Indeed, ethically it can’t came from me.

I’ve seen these facts play out in litigation. You can imagine the implications if an employer takes a chance by hiring a registered sex offender, and that person recidivates connected to work. The risk is astronomical; it’s as close to bet-the-business you can get in an employment case. If the company wants to take on that risk, I wish them and all of their employees all the best. But I’m not doing my job as the employer’s attorney if I don’t advise of the risk and the potentials of what can go wrong. My worst case scenario is that I don’t advise and their worst case scenario happens. Businesses need to make informed decisions, and simply saying, “Those who make mistakes deserve second chances,” or “The sex offender registries are problematically over broad and broken, and employers shouldn’t rely upon them in making employment decisions,” sets up an employer for a potential disaster. My job is to advise against courses of action that could cause a disastrous worst case scenario to occur, and I’m going to offer that advice 24/7/365.

Our legal system is adversarial. That’s how it was designed, and that’s how it works. And if you take issue with the advice I’d provide a client on this issue, then you take issue with the structure of our legal system, and not with me or the role I’m playing in it.