Compliance Corner

State courts often have some quirky procedures, and the New York Supreme Court is no exception. Civil records from the New York Supreme Court typically include a reference to an “RJI” and whether it has been filed. What does “RJI” mean?

Definition: RJI is an abbreviation for “Request for Judicial Intervention.” It’s a form that is filed by either a plaintiff or defendant sometime after the summons and complaint is served on the defendant in a civil case.

Filing Effect: When an RJI is filed, the civil case is assigned to a judge.

What does this mean? When a plaintiff files a complaint in the New York Supreme Court to start a civil case, the court’s only action is to assign the case an index number. The court will not take any other action regarding the case – such as deciding a motion or order to show cause or hold a conference or trial – until either the plaintiff or defendant files an RJI. When the RJI is filed, the case is assigned randomly to a judge who will decide everything in the case until it is over.

How long will a case stay in the pre-RJI status? Because New York law does not specify a time limit for pre-RJI status, a civil case could be pending for years without any activity showing on the publicly available docket other than the filing and service of the summons and complaint.

That is the quirk in the New York Supreme Court civil case procedures – the possibility of a lengthy period of no case activity during the pre-RJI status.

To ensure that a civil case is timely prosecuted, many state courts assign a judge to a civil case when the summons and complaint are filed.

For California employers concerned about hiring sex offenders, there are a few important points to keep in mind.

An employer has a duty to keep the workplace free of sexual harassment and other forms of discrimination under state law. Under the California Fair Employment and Housing Act (FEHA), an employer can face significant liability if it knowingly employs a sex offender and fails to take actions to protect its other employees from unlawful behavior by that person.

To avoid this problem, employers would like to know if they are hiring a registered sex offender. But how can they find out?

Since 2005, the state has operated a Megan’s Law website with a database to obtain access to the state’s list of more than 100,000 registered sex offenders. Created to help state residents better protect their families by being able to search for an individual registrant or by geographic location, the site (https://www.meganslaw.ca.gov/Default.aspx) contains the sex offender’s name, aliases, age, gender, race, address, physical description and, in some cases, a photograph.

While the site would appear to be a boon for employers, state law expressly forbids use of the state’s sex offender registry information for employment purposes. California Penal Code section 209.46(l)(2)(E) prohibits the use of information disclosed on the website for purposes relating to health insurance, insurance, loans, credit, education, housing and employment, among other uses.

Statutory exceptions provide for use “to protect a person at risk,” a term not defined by the Penal Code, as well as for employers required by law or authorized to request criminal history from the California Department of Justice. Examples of businesses that meet this standard may include child care centers, financial institutions and governmental agencies.

An employer who runs afoul of the Penal Code’s prohibition can face actual and exemplary damages, attorneys’ fees and a civil fine. Legislative history explains that the website attempts to protect the public while not inflicting additional punishment on registrants.

For employers trying to walk the fine line of protecting other employees and third parties, such as customers, from potential sex offender registrant employees while not violating the Penal Code, two alternate avenues exist to try to find out information about a sex offender: conviction records and employee/applicant self-disclosure.

Following applicable state and federal law, employers can conduct a criminal background check on applicants and employees and learn of a sex offense conviction. (However, convictions past the seven-year cut-off date in California may not appear on a background check report while the individual may still appear in the sex offender registry). An applicant or employee may also self-disclose a conviction.

Providing another wrinkle for California employers, the state’s Fair Chance Act took effect on January 1, 2018, mandating that employers with five or more employees must wait until after a conditional offer of employment has been made to ask any questions about criminal history. This includes inquiries about convictions, running a background check or other efforts to find out about an applicant’s criminal past.

If the employer decides not to hire the applicant, it must conduct an individualized assessment of the conviction at issue to evaluate whether it has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” Other legal requirements, based on both state and federal law, must also be satisfied if an employer takes an adverse action on the basis of the background check (see our prior blog post (https://www.scherzer.com/reminder-to-california-employers-about-requirements-when-taking-adverse-action-based-on-a-criminal-record/) for more details).

What if an employer learns that an employee is a registered sex offender from another employee’s perusal of the Megan’s Law website? This situation could trigger liability under section 290.46 and employers should be careful to take action only after evaluating any potential risk the sex offender employee may pose to coworkers or customers, considering all the facts and circumstances.