Metropolitan News-Enterprise


Thursday, March 25, 2010


Page 1


C.A.: Screener Can Pass On ‘Megan’s Law’ Information


By SHERRI M. OKAMOTO, Staff Writer


An employment-screening business may provide information garnered from California’s online database of registered sex offenders to its clients, notwithstanding statutory prohibitions on the use of such information for purposes relating to employment, this district’s Court of Appeal has ruled.

Div. Eight concluded on Tuesday that the Legislature did not intend to extend liability to persons or businesses that reproduce or republish information from the “Megan’s Law” website, and that such disclosures are protected by the First Amendment.

The justices affirmed Los Angeles Superior Court Judge Emilie Elias’ decision to toss William Mendoza’s action against ADP Screening and Selection Services Inc. as a strategic lawsuit against public participation.

Mendoza claimed that ADP conducted a background check on him after he filled out an application for employment in August 2007 with one of ADP’s clients. As part of this check, ADP allegedly accessed the “Megan’s Law” website, which is operated by the state’s Department of Justice and lists designated registered sex offenders in California.

Although Mendoza did not expressly allege that the employer decided not to hire him based on information disclosed on the website, he claimed to have suffered “irreparable harm and damages as a result” of ADP’s violation of Penal Code Sec. 290.46.

That statute prohibits the “use of any information that is disclosed [on the “Megan’s Law” website]…for purposes relating to…[e]mployment,” and provides that “[a]ny use” of information disclosed on the website “shall make the user liable for…actual damages…and attorney’s fees, exemplary damages, or a civil penalty.”

ADP filed a special motion to strike Mendoza’s complaint, asserting that its actions in accessing the “Megan’s Law” Law website and compiling information from it for Mendoza’s prospective employer were made in furtherance of its constitutional free speech rights.

Following a hearing, Elias entered a minute order granting ADP’s motion, finding that its alleged conduct involved protected commercial speech on a matter of public interest. She further determined that ADP did not “use” the material from the website, but merely “disclosed” it to a third party.

Writing for the appellate court, Presiding Justice Tricia A. Bigelow agreed with Elias’ analysis.

Bigelow distinguished Mendoza’s case from Flatley v. Mauro (2006) 39 Cal.4th 299, which held that a defendant is precluded from using the anti-SLAPP law to strike a complaint if the defendant’s conduct was illegal as a matter of law. The justice reasoned that the Supreme Court’s use of the phrase “illegal” in the Flatley decision “was intended to mean criminal, and not just violative of a statute.”

She noted that a violation of Sec. 290.46 is not a misdemeanor or a felony and that “a plaintiff’s complaint always alleges a defendant engaged in illegal conduct in that it violated some common law standard of conduct or statutory prohibition, giving rise to liability.” The justice then concluded that it would “greatly weaken the constitutional interests” which the anti-SLAPP law was designed to protect if any statutory violation were outside the reach of the statute’s purview.

Bigelow added that Mendoza could not prevail on his complaint as a matter of law because ADP had not “used” the information it gathered from the “Megan’s Law” website.

She explained that the Legislature has long recognized a distinction between the “use” of sex offender information, and the “reproducing” or “republishing” of such information, opining that the intent of Sec. 290.46 was to limit liability to employers who “use” information disclosed on the website as a basis for an employment decision.

Mendoza’s claim for relief under Sec, 290.46, if any, lay with his prospective employer, not ADP, Bigelow said.

The justice also concluded that Mendoza’s claim based on an alleged violation of Civil Code Sec. 1786.20(c)—which prohibits investigative consumer reporting agencies from making inquiries on behalf of a client that “would violate applicable federal or state equal employment opportunity law or regulation”—also failed as a matter of law since ADP’s inquiry into whether Mendoza was identified on the “Megan’s Law” website did not violate any federal or state equal employment opportunity law or regulation.

“We agree with the Attorney General’s conclusion, apart from Mendoza’s current case, that the prohibition against the use of information disclosed on the MLW does not mean that registered sex offenders are a protected class for purposes of housing discrimination under the Fair Employment and Housing Act…and we see no reason to come to a different conclusion in the employment discrimination context,” she said.

Justice Laurence D. Rubin and Los Angeles Superior Court Judge Peter D. Lichtman, sitting on assignment, joined Bigelow in her decision.

Craig A. Kegel and A. Eric Aguilera of Bohm, Matsen, Kegel & Aguilera represented Mendoza while Deborah C. Saxe and Daphne P. Bishop of Jones Day represented ADP.

The case is Mendoza v. ADP Screening and Selection Services, Inc., 10 S.O.S. 1523.


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