All posts by Les Rosen

What does an employer do if the applicant lies or fakes their education, but it was not a job requirement

By Les Rosen, Employment Screening Resources

From the Employment Screening Resources mailbox:  We had an applicant for a job that did not require a degree.  However, the applicant listed a degree but it turns out he in fact never graduated and never earned the degree.   Can we consider that even though the job did not require a diploma?

Answer:   Generally speaking, if an applicant in dishonest in the hiring process, there is evidence to suggest that person may well be dishonest once in the job.  The dishonesty can be either making a  material omission or a material misstatement of  fact.  Dishonesty is typically a valid reason not to hire. The applicant put down a fake qualification on the application for the employer to consider, and the employer may well take that as act of dishonestly.  The applicant can hardly complain that they are the subject of discrimination,  since dishonest people are not a protected class.

In addition, even though a degree was not required, the  applicant obviously listed the degree to gain an advantage in the hiring process.

However, in this situation, the applicant was dishonest about something that was not a requirement of the job.  Although an employer may well still be on solid ground in not hiring someone  that was dishonest, going forward, a employer may consider two changes to their application to ensure there is no gray area when it comes to being honest in the employment application.

First, an employer should consider including the following language on the employment application where questions about education is asked:

Please list all degrees or educational accomplishments that you wish to be considered by the employer in the employment decision.

This statement has the advantage of putting the burden on the applicant to determine if they want to report a degree or educational accomplishment. The applicant is on notice that any degree they report can be used by the employer for the employment decision. If the applicant chooses to report a worthless degree, or a degree not earned, they can hardly complain if an employer uses that to deny employment, even if the degree was not a requirement of the job.

Secondly, an employer may consider adding the following type of language to their application if not already there:

The information provided by the applicant is true and correct, and that any misstatements or omission of material facts in the application or the hiring process may result in discontinuing of the hiring process or termination of employment, no matter when discovered.

This language in general protects an employer if an applicant is dishonest, even if the information comes to light after the person is hired.

Often times, the key to a successful hire is a well written employment application.  For more information on this and other topics, see: The Safe Hiring Manaul.

Background Check Expert Lester Rosen To Present at National Webinar on the Use of the Internet, Facebook and Social Networking sites to Screen Job Applicants

By Jared Callahan, Employment Screening Resources

Employment Screening Resources, a leading international employment screening background checking firm headquartered in the San Francisco area, announced that its president, Lester Rosen, will be presenting a national webinar on Tuesday, March 23, 2010  on Screening Applicants Using Social Networking Sites: Legal or Liability?

The webinar is sponsored by Lorman Education Services, providing concise, accurate and timely information seminars to keep businesses, and the professionals who serve them, current in the rapidly changing regulatory environment. The webinar information is at: 

This teleconference will review this emerging area of employment law, examining the pros and cons of employers utilizing such tools and the legal landscape. Topics will cover how and why employers and recruiters utilize these sites. It will then cover a number of legal implications, such as problems with employers obtaining information they should not have and privacy issues. Finally, it will examine approaches that employers, recruiters and applicants may consider.

“The use of the Internet and social networking sites has become a critical topic for employers in selecting the best candidates,” commented Rosen. “This Lorman seminar will help employers exercise due diligence and recognize and try to minimize their risks when using online tools.”

Mr. Rosen, who is also an attorney, is a nationally recognized expert on employment screening background checks.  He is a writer and speaker on the Fair Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. In addition, Mr. Rosen is the author of the first comprehensive book on employment screening, “The Safe Hiring Manual Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace.” He also wrote, “The Safe Hiring Audit.”

Mr. Rosen’s speaking appearances have included numerous national and statewide conferences.  He has testified in the California, Florida,  and Arkansas Superior Courts as an expert witness on issues surrounding safe hiring and due diligence. Mr. Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade organization for the screening industry, and served as its first co-chairman in 2004.

More information about Employment Screening Resources can be found at

Use of Workers’ Compensation Records: Extreme Caution Advised

By Lester Rosen, Founder & CEO of Employment Screening Resources (ESR)

Employers have become very aware of the high costs of workers’ compensation claims. The loss to American business from both fraudulent claims and re-injury causes many employers to want to know whether a job applicant has a history of filing workers’ compensation claims.

At the same time, the Federal Americans with Disabilities Act (ADA), as well as numerous state laws, seek to protect job seekers from discrimination in hiring as a result of filing valid claims. The ADA also seeks to prevent the discrimination against workers who, although suffering from a disability, are nevertheless able to perform essential job functions as long as there are reasonable accommodations.

The bottom line is that an employer cannot request workers’ compensation records in order to have a policy of not hiring anyone who has made a claim. It is discriminatory to penalize a person who has exercised a lawful right in a lawful way and filed a valid claim.

Employers are well-advised to contact a labor lawyer before seeking to obtain workers’ compensation records. A labor law expert can assist an employer in preparing company policies, job descriptions, and forms and procedures necessary to comply with the ADA, such as a conditional job offer and medical review form.

The following brief summary describes the major points involved in obtaining and using workers’ compensation records.

1. There are wide variations between the states in the availability of these records. In a few states, the records are not available to the public, period. In other states, it can take two to three weeks to obtain a record. In some states, there are special requirements before obtaining the records, such as a notarized release. Because they are familiar with state regulations, background screening firms can assist employers in obtaining these records.

2. Under the ADA, an employer may not inquire about an applicant’s medical condition or past workers’ compensation claims until a conditional job offer has been extended, subject only to a job-related medical review. According to the U.S. Department of Justice: “Under the ADA an employer may only ask about an applicant’s disability or give a medical examination after the employer has made a job offer. The job offer can be conditioned on successfully passing a medical examination. Thus, if the person with a disability is denied the job because of information obtained from the medical examination or because of the applicant’s disability, the reason for this decision is out in the open. This procedure should limit impermissible consideration of disability.”  See:

3. Any questioning in a job interview should be restricted to whether the person can perform the essential job functions with, or without, reasonable accommodation. That is another good reason to have well-written job descriptions so it is clear in an interview exactly what the job entails.

4. If a candidate discloses a disability, then there should not be any follow-up. Questioning should be limited to whether that applicant can perform the job with or without reasonable accommodation.

5. If a history of filing workers’ compensation claims is found POST-OFFER, there is an argument that the offer may only be rescinded under very limited circumstances. A best practice may be to have an attorney review the matter, however, before taking an adverse action. These situations may include:

  • a. The applicant has lied about a workers’ compensation history or medical condition, usually during a medical examination;
  • b. The applicant has a history of filing false claims;
  • c. The past claims demonstrate the applicant is a safety or health threat to himself or others in the opinion of a medical expert;
  • d. The past claims demonstrate the applicant is unable to perform the essential functions of the job even with a reasonable accommodation.

6. If the applicant has lied on a medical questionnaire, or to a doctor performing a pre-employment physical, then the employer may be justified in rescinding the job offer based upon dishonesty. If an applicant has a history of multiple claims that have been denied, then an employer may be justified in rescinding the offer based upon a history of dishonest conduct. The reason is based upon an inference of fraud, not disability.

Some firms contend that a workers’ compensation record may also be used to determine the truthfulness of information on a job application on the theory that an applicant may try to hide a past employer where a claim was filed. However, even with this justification, if used, the best practice may be to review the records post-hire only.

What does all this mean? This area is complex and highly regulated by the ADA and state laws, and before attempting to utilize a search for workers’ compensation claims as part of a screening program, an employer is well-advised to consult with their attorney.  As a general rule, Employment Screening Resources (ESR) will not provide these records to an employer unless the employer has clearly indicated they understand the issues with these records, and preferably have had the matter reviewed by their attorney.

For additional information, please visit

(Note: This article is intended for general educational purposes only, and does not constitute legal advice.)


Background Check Bashing -Either Too Much or Too Little Depending upon the Most Recent Headline

By Les Rosen, Employment Screening Resources

The recent headlines dealing with background checks demonstrate that to some extent, Americans are conflicted about the whole topic of background checks.

On one hand, as reported in past blogs by Employment Screening Resources (ESR), discrimination and privacy advocates feel that background checks are too intrusive and unfair. The EEOC has filed a test case alleging that a large national employer used credit report and criminal records to unfairly discriminate against members of protected groups. The state of Oregon and others are considering limitations on credit reports. Scientists from the Jet Propulsion Laboratory (JPL) in Southern California have succeeded in taking their complaints all the way to the United States Supreme Court that government mandated security checks revolving around background checks and entry into facilities are overly intrusive and an invasion of privacy. A recent study conducted at a major university suggested that after a relatively short period of time, criminal records are not a predictor of future misconduct.

Conversely, the recent tragic shootings at University of Alabama-Huntsville and Ohio State University have lead to many to question if background checks should be even more in-depth. Those shootings had horrific impacts on the victim’s families and the communities involved and questions have been raised if even more background checks should have been done.

In  the case of the Ohio State University workplace violence, a top notch and highly respected background screening firm performed what appeared to be a standard entry level criminal record search and found what any screening firm would likely have found, which was no record. However, critics note that a 30 year old conviction for receiving stolen property should have been unearthed, even though old records have been destroyed, and there was some confusion about the date of birth that should have been used.

Of course, to find a thirty year old prison record under those circumstances would normally require an employer to retain private investigators at the cost of many hundreds of dollars for each and every potential new hire, as opposed to public record background screenings. And ironically, even if the screening firm had located the 30 year old criminal record for a non-violent offense and was able to establish the record belonged to the shooter, any use of it would have been soundly criticized as unfair and discriminatory. It seems that employers cannot win either way.

As it turns out, in the Ohio State University case a past employment verifications may have raised the red flags that would have alerted the employer to take a closer look at the hiring decision. It underscores that employers need to use a number of overlapping tools to evaluate a potential hire, and that no one tool, such as a criminal background check, can be used to make hiring decisions. In addition, background checks are just one component of an overall workplace violence prevention strategy.

The bottom-line is that background screening occurs at the intersection of competing and compelling societal interests. On one hand, no one wants to see workplace violence, or to have unqualified people get jobs with fake credentials. Safety, security and honesty are core values. On the other hand, society is also rightly concerned with fairness and privacy and as well as efforts to combat discrimination. The issue is reaching the right balance.

It is interesting that nearly every time there is an objection because there is too much screening, there is often a call for even more screening after it is revealed that some crime or offenses occurred or where an inappropriate applicant was hired without a sufficient background check. With all due respects to the JPL scientists, one would assume their position may be different if it ever turned out that a failure to perform background checks resulted in a terrorist hurting the U.S., someone with fake credentials getting hired and obtaining access, or workplace violence occurring that could have been prevented.

For more information about background checks, visit Employment Screening Resources (ESR) at

Employment Screening Resources (ESR) Releases New Services for Background Checks for Small and Medium Businesses

Employment Screening Resources (ESR), a leading national employment screening firm announced today the release of a web site focused on providing quick and easy access to legally comliant essential background checks to small and medium businesses.  The service is available at:

The new service, called ESRDirect, provides small and medium business with a simplified online ordering system that is as easy as ordering a book online.  Employers have full control over their budgets since the exact final cost is available before the employer approves the request.  Users of ESRDirect also receive unlimited consultation with background screening specialist so that employers are not on their own in fulfilling this essential function. 

The new site is aimed at removing roadblocks faced by small and medium business that do not hire in large numbers but need to avoid hiring applicants that are dangerous, unfit, unqualified or dishonest.  A small or medium business may not always get the attention they need and may need to use a complicated ordering system that is difficult to remember if not used frequently. The cost can be a big surprise, if extra fees are added on for court costs or other third party fees. 

“With ESRDirect, small and medium employers enjoy the convenience of a simplified, cost-effective and intuitive system that does not drain their time, energy and budgets,” commented Jared Callahan, Director of Client Services, and a national speaker on topics related to safe hiring. “Small and medium businesses now have available the resources and tools enjoyed by Fortune 500 firms to keep their firms safe and profitable and the security of knowing they are conducting legally compliant background checks.” 

ESR further protects small and medium business by not sending data offshore beyond U.S. privacy laws, which endangers applicant privacy and can lead to identity theft. Furthermore, ESR does not expose employers to claims of discrimination by engaging in automated decision making. ESR supplies information to employers so they can determine if there is a business justification to utilize a criminal record in hiring, taking into account the nature of the crime, the nature of the job and the age of the criminal record.

Employment Screening Resources (ESR) is the firm that literally wrote the book on background checks, The Safe Hiring Manual, and provides pre-employment screening services and drug testing internationally.  The firm specializes in legal compliance expertise and industry leading technology, service, accuracy and turnaround.

About Employment Screening Resources: Employment Screening Resources ( is a safe hiring partner and provides REAL background checks, not cheap database shortcuts or off-shoring or the use of home operators that endangers privacy. Contact:  Jared Callahan for additional information at 415-898-0044 or by email

Employment Screening Resources Safe Hiring Online Course Approved for Recertification Credits by HRCI

By Thomas Ahearn, ESR Staff Writer

The Employment Screening Resources (ESR) online course for “safe hiring” has been approved for recertification credits by the HR Certification Institute (HRCI) for 2010. 

The internationally recognized certifying body for the Human Resources profession, HRCI has awarded more than 116,000 credentials in more than 70 countries in the field of human resource management to HR professionals who are recognized throughout the world for their high standards of competence. 

ESR’s “Safe Hiring Certification Training” is an intensive, self-paced online educational and professional development course designed for employers, human resource and security professionals, and anyone responsible for risk management and due diligence in hiring and pre-employment background screening. The course may be accessed at any time from anywhere, including while at work.  The entire course provides 20 hours of credits, or the course can be taken in four 5 hour modules.  

Since employee problems are usually caused by problem employees, employers realize that hiring workers with criminal records, falsified credentials, or otherwise undesirable backgrounds can create legal and financial nightmares. Without due diligence in hiring, employers may make hiring decisions that could lead to lawsuits for negligent hiring, workplace violence, theft, embezzlement, and various other workplace problems. 

However, employers and human resources and security professionals face numerous challenges when it comes to safe hiring policies, including:

  • Heavy regulation by federal and state laws;
  • Numerous privacy and discrimination issues;
  • What information is available and how to get it, and;
  • How to utilize and analyze information in a cost-effective manner. 

Participants in the course will obtain the knowledge and skills necessary to implement and manage a legal and effective safe hiring program. For more information about ESR’s “Safe Hiring Certification Training” course – which is free to ESR clients – please visit 

ESR is pleased to be an approved provider by HRCI.

Lesson on how a consumer should not react to an inaccurate background check

A federal District Court decision issued in August of 2009 in the Western District of Arkansas contains a valuable lesson for a consumer that believes that a background check was inaccurate. In that case, a Court held it was the consumer’s own behavior after the background check that caused the job loss, and not an inaccuracy caused by human error that was quickly corrected. Continue reading

Employment Screening Resources to provide background checks as a member benefit for NCHRA members

By Jared Callahan, Employment Screening Resources

Employment Screening Resources (ESR)  is now providing background checks to members of the Northern California Human Resources Association (NCHRA), the second largest Human Resources Association in the country, as an added member benefit to NCHRA members.   Employment Screening Resources is  a leading national employment screening background checking firm located in Novato, CA and a long time me supporter of the NCHRA.  

NCHRA has been advancing organizations through human resources since 1960 and is dedicated to connecting human resources professionals with resources and quality service providers for members.  

Employment Screening Resources (ESR) is the firm that literally wrote the book on background checks, The Safe Hiring Manual,  and provides pre-employment screening services and drug testing internationally. ESR specializes in legal compliance expertise and industry leading technology, service, accuracy and turnaround time.

“We are honored that an organization as prestigious as the NCHRA would select our firm as a value-add for member benefit,” commented Jared Callahan, Director of Marketing.  “Background screening has become mission critical for employers of all sizes and we are pleased to offer a variety of services to help employers identify the best candidates and to exercise due diligence in hiring.”

About NCHRA:  The Northern California Human Resources Association ( ) is the Northern California affiliate for the Society of Human Resources Management (SHRM) and is nationally recognized for providing the highest quality continuing education and services to its members.  They can be reached at: 415-291-1992.

About ESR:  Employment Screening Resources ( is a safe hiring partner that provides REAL background checks with no short cuts. ESR specializes in legal compliance and provides industry leading technology, service, accuracy and turnaround time. ESR promotes data protection and does not offshore data or use home-based operators.  ESR also offers expertise in complex California laws, through its headquarters in the San Francisco area.  Contact: Jared Callahan for additional information 415-898-9944 or at

Report Finds E-Verify Fails to Catch Over Half of Illegal Workers Committing Identity Theft and Fraud

By Thomas Ahearn, ESR Staff Writer

A research company has found that E-Verify – the employment eligibility verification system that the U. S. government would like employers to use to help control illegal immigration – has failed to catch over half of the number of illegal workers it checks.

According to Westat, a research company evaluating the system for the Department of Homeland Security (DHS), E-Verify wrongly cleared illegal workers 54 percent of the time after failing to detect identity theft and fraud. While the Westat report indicated E-Verify correctly identified legal workers 93 percent of the time, previous studies did not reveal how many illegal workers fooled the E-Verify system with identity theft and fraud.

Westat’s report – completed in December 2009 using data from the previous year – also stated in a summary that E-Verify, while not perfect in detecting identity theft and fraud, was “much more effective” than the I-9 paper forms used by most employers. The results come at a time when President Obama’s administration has made cracking down on U.S. employers who hire illegal workers a central part of its immigration enforcement policy.

However, just using E-Verify gives an employer a powerful defense in the event that a worker is later found to have committed identify theft. E-Verify is a free, Internet-based system operated by DHS in partnership with the Social Security Administration (SSA), and allows participating employers to electronically verify their employees’ employment authorization. Employers run a prospective employee’s information against DHS and SSA databases to check whether that worker is legally permitted to work in the United States. Results are returned online within seconds.

Despite any drawbacks, the E-Verify employment eligibility verification system remains a powerful tool for employers to verify the employment authorization of employees. E-Verify virtually eliminates SSA mismatch letters, improves the accuracy of wage and tax reporting, protects jobs for authorized workers, and helps U.S. employers maintain a legal workforce. Approximately 184,000 U.S. employers currently use E-Verify.

E-Verify/I-9 form compliance is merely one aspect of a thorough and comprehensive hiring strategy that can help employers uncover identity theft and fraud committed by jobseekers by using background checks and employment verifications. Employment Screening Resources (ESR) is an authorized E-Verify Designated Agent. For more information about E-Verify, please visit


Proposed Credit Report Law in Oregon Would Limit Employment Screening Background Checks

By Les Rosen, Employment Screening Resources

Oregon may be following Hawaii and Washington as states placing limits on the use of credit repots for employment purposes when the Oregon legislature passed Senate Bill 1045 and sent it  to the governor on February 22, 2010.

The bill would prevent employers from utilizing credit reports in employment including hiring, discharge, promotion, and compensation except in the following circumstances: circumstances:
1.  Employers that are federally insured banks or credit unions;
2.  Employers that are required by state or federal law to use Individual credit history for employment purposes;
3.   The employment of a public safety officer, or
4.  Employers that can demonstrate that the information in a credit report is “substantially job-related” AND the employer’s reasons for the use of such information are disclosed to the employee or prospective employee in writing.

For the actual code language, see <a href=””></a>

Private employers in Oregon, assuming the bill is signed into law, would need to carefully review their justification for a credit report and be prepared to state those reason in writing to an applicant before a credit report is requested or obtained.

The arguments over the use of credit reports in Oregon mirrors the national conversation on the relevance and fairness of credit reports for employment.  The primary argument against credit reports  is that a credit history has no relationship to the ability to perform the job and in fact can result in unlawful discrimination.  In addition, credit reports are criticized for being inaccurate.   The argument is also made that applicants whose financial situation has been severely impacted by the recession are victimized again when a credit report makes it even harder to get a job, creating a  Catch-22.

The argument in favor of credit reports is that businesses need the flexibility to hire appropriate employees, and that a credit report can be critical to prevent embezzlement or other problems where someone is hired to a position that has access to cash or assets.   Furthermore, an employer does not see the credit score.  It is an urban myth that credit scores are used for employment.

It should be noted that Employment Screening Resources ( ESR) and many other background screening firms consistently recommend that credit reports be reserved for positions where there is  a clear business justification, and to keep in mind that credit reports can contain information that is old, incorrect, or not relevant to the job. 

If passed, Oregon would be the third state to have placed limits on credit report.  Washington was the first state, which required that employers.  Under a Washington  law passed in 2007, employers cannot obtain a credit report as part of a background check unless the information is: substantially job related and the employer’s reasons for the use of such information are disclosed to the consumer in writing; or (ii) Required by law.  See:

In 2009, Hawaii also placed limits on credit reports by amending the Hawaiian Fair Employment Practices Act and making it an unlawful discriminatory practice for any employer to make an employment decision based upon an individual’s credit history or credit report, unless the information directly relates to a bona fide occupational qualification.  The law also requires that here fist be a conditional job offer.  Hawaii Revised Statues Sec. 378-2(8).

Similar to the proposed Oregon law, there are certain carve-outs in the Hawaii law. The law makes exceptions for employers that are expressly permitted to inquire into credit history or a credit report by federal or state law, financial institutions that are insured by a federal agency or to managerial or supervisory employees. The law sets out a specific definition of what constitutes a “Managerial” or “Supervisory” employee.  See:

Other states are looking at similar measures.  California has passed a law twice that would have severely curtailed the use of credit reports, which were both vetoed by the Governor.  Employers, Human Resources and Security professionals should expect to see more activity on this issue.