Megan's Law and SLAPPs

The court of appeal's decision in Mendoza v. ADP Screening and Selection Services is interesting and perhaps dangerous for employers. The plaintiff, Mendoza, applied for an unspecified job with an unnamed employer. The employer conducted a background check through ADP Selection Services. ADP, as part of its services, checked the Megan's Law website, where information about registered sex offenders is kept. Although he does not definitively say so, the implication is that he was denied employment because of his appearance on the Megan's Law website.
Mendoza sued ADP, alleging that its use of the website was unlawful - because it was supplying the information to the employer. He claimed the disclosure violated Megan's Law itself, as well as the California investigative consumer report law.
ADP filed a motion to strike the complaint, claiming Mendoza's lawsuit was a "SLAPP" - strategic lawsuit against public participation. ADP claimed it has the right to republish the Megan's Law information, doing so is a protected activity, and Mendoza was seeking to interfere with that right by filing suit.
And both the trial court and court of appeal agreed. So, ADP won this case on the motion and on appeal, and obtained a huge award of attorney's fees, as the anti-SLAPP statute provides.
But do not be fooled. Mendoza did not sue the prospective employer for denying him employment. Had he done so, the court of appeal acknowledged, he might have had a good case.
So, why would an employer agree to receive the information from a third party, when it faces liability for using that information?
Of note, the court did say that an employer MAY use the information on the Megan's Law website "to protect a person at risk" even if for employment purposes. So, employers with operations exposing employees to minors, for example, possibly can use the Megan's Law website's information. The question remains whether the employer's use fits within the definition of "protecting a person at risk."
The bottom line is that unless the employer is using the information from the Megan's Law website to "protect a person at risk," which is not defined, it remains illegal for the employer to "use" that information to deny employment, whether it comes from the website itself or a third party. Therefore, notwithstanding this decision, employers should carefully consider whether to permit third party background investigators to disclose information found on the Megan's Law website.
The case is Mendoza v. ADP Screening and Selection Services and the opinion is here.