All posts by Les Rosen

Job Applicants and Online Employee Background Screening Software

A recent post on an HR blog concerned an applicant who was directed online to web-based background screening software to fill out information, finding it took 80 minutes. Not surprisingly, this applicant was not pleased with the amount of time and effort it took to fill out on online background form. Such dissatisfaction can actually lead to qualified applicants going elsewhere. See:

Employment Screening Resources (ESR)  believes that an applicant’s time is valuable and the online system for a background check should respect the applicant and reflect the value the employer places upon recruiting qualified candidates. The ESR system, for example, only takes a few minutes of an applicant’s time to fill out online. It only asks those questions that are strictly necessary for the screening an employer wants and does not waste time by asking for information that is not needed for the screening involved. It also transfers information already put into an Applicant Tracking System (ATS), if the ATS is able to send it. Also, all work is done in the US in a professional environment, and not sent offshore or into private homes for processing, so applicant privacy and data protection is much greater. Applicants that have had a negative experience with using online background screening systems to fill out their own data may want to suggest that the employer look at other systems, such as the ESR system at:

Due diligence risk management and Employment Screening

In the April, 2009 ESR Newsletter, ESR reported on a case in Ohio where a negligent hiring lawsuit was filed on behalf of a sleep clinic patient that was sexually molested by a staff member.  The article reported that a technician was facing gross sexual imposition and sexual imposition charges for allegedly molesting five victims.  The lawsuit “accuses the sleep clinic of negligence for hiring (the worker) and failing to properly supervise him.”  

Another sleep clinic case, this time from California is now in the news.  According to a story in the Monterey County Herald, a sleep technician was accused of sexual misconduct and the case eventually resulted in a no contest plea to a battery charge.  The case even lead to a new law in California that regulated workers in sleep clinics and required them to pass background check.  See: 

These stories demonstrate a fundamental fact of life for employers. In deciding how extensively to perform background screening, employers need to consider the risks involved.  Patients in a medical facility are highly vulnerable and therefore at greater risk. Presumably, patients at a sleep clinic are even more vulnerable since they are there to sleep.

Examples where employers may have an increased duty of care are: 

  • The workers have contact or responsibilities with groups at risk, such as the young, infirmed, or elderly.
  • Jobs such as a security guard, where a person acts under a “color of authority.”  A person who wears a uniform is even a higher risk since a person may assume they have authority and may let their guard down. 
  • Jobs with special responsibilities such as an apartment manager that has the master key to all of the apartments.
  • Jobs where a worker has access to sensitive consumer information, such as credit card numbers or Social Security numbers.
  • Jobs where by statute, there is particular sensitivity.  An example can be safety sensitive positions such as workers at nuclear plants.  Sarbanes-Oxley compliance is another area where that may create a higher duty of care.
  • Jobs where workers enter homes, or where other unique risks exist.  A person in their own home can be extremely vulnerable since they are shielded from the public and cannot obtain help easily.  In fact, an organization called the Sue Weaver Cause advocates greater due diligence where workers enter homes.  According to their website:
    “August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender hired to do service work in her home. Sue had contracted with a major department store to have the air ducts in her home cleaned.  (The department store) did not conduct criminal background checks on those workers they sent into their clients’ homes.”   For more information, see:  

To review the risk management considerations for your screening program, contact Jared Callahan at 415-898-0044 or e-mail him at

Calling unlisted former employers for employment reference

From the ESR mailbox: I have heard that it is against the law to check any reference other than those provided by the applicant. For example, if an applicant had a job that was not listed on the resume or application, can a background firm or employer still contact that person?

Answer: We are not aware of any legal prohibition against contacting “unlisted” individuals to perform reference checks as part of the employment process. The consent that is given to employers or screening firms to verify past employment or qualifications is not limited to just those individuals an applicant chooses to list or reveal

However, the unlisted” person should only be contacted if the person has knowledge relevant to employment and should only be asked job related questions. Questions for example, about legal off-duty conduct would not be proper. Furthermore, any questions should certainly be non-discriminatory and not an invasion of personal privacy. Typically, a background firm is asked to contact listed employers. There are circumstances however where the person in charge of hiring decides to go a deeper because they are hiring for an important position. The hiring manager hiring may contact the listed references, and then ask who else has they can call that has knowledge about the applicant. This is known as a developed reference. The purpose is to develop the names of other individuals who know the applicant and to get a candid assessment from someone who perhaps has not been “prepared” to give a reference. The topic of unlisted employment may also come up if there are unexplained gaps in employment, and the employer wants to dig deeper. Unlisted jobs may also appear on automated employment verification databases.

One important caveat-”a background firm will typically not contact a current employer without specific permission in order to avoid causing any problems on the current job if the new job doe not work out.

Employers with questions about background checks are free to send them to Jared Callahan at . For more information generally, see

ESR is closed for the holidays on November 26 and 27. Happy Thanksgiving.

Ambiguous References and the Fine Art of a Polite Negative References

Who says there is no humor in the hiring process?  Employers, Human Resources professionals and Recruiters   may enjoy the book, “Lexicon of Intentionally Ambiguous Recommendations (LIAR),” by Robert Thornton, available on Amazon.  The book gives a whole new meaning to the term “damned with faint praise.”  It answers the age old question of how to give a truthful recommendation without getting sued!

Here are  just a few examples from this very clever book:

“Her ability is deceiving” (She lies, cheats and steals)

“No salary would be too much for him.” (He is not worth anything)

“It was a pleasure working with her the short time I did.”  (Thankfully it was not longer)

“I am pleased to say that this candidate is a former colleague of mine” (I can’t tell you how happy I am that she left our firm)

“He’s a man of many convictions.” (He’s got a record a mile long). 

“She gives every appearance of being a reliable, conscientious employee”  (But appearances can be deceiving)

Any employers, recruiters or HR or Security Professionals that want to share their own favorite way of  giving ambiguous references, please send them to Jared Callahan at ESR by  e-mail at

History of NAPBS

A frequently asked question is how the National Association of Professional Background Screeners (NAPBS®) got started.  Here is an excellent expert from a blog dated Jun-4-2008 that recounts that history at

Background investigations are one of the most in-demand services provided by private investigators. From pre-employment screening, to tenant checks, to corporate due diligence investigations, the need for comprehensive background screening grows every day. This field can be a very lucrative opportunity for private detectives to build their businesses. However, unfamiliarity with the many laws and regulations in this area can also lead to catastrophy. It is essential for the PI interested in this line of work to fully understand these issues and hold himself to a high professional standard.

Luckily, the National Association of Professional Background Screeners is here to help. This organization is at the forefront of the screening industry, providing its members with the information and resources needed to succeed in this growing field. I asked Larry Lambeth, Chairman of the NAPBS, to discuss how the organization was formed:

“NAPBS began through the efforts of many people. Steve Brownstein, the editor of The Background Investigator  (a newspaper devoted to the screening industry), held the nation’s first screening industry conferences. At a conference in Long Beach, CA in April, 2002, Brownstein encouraged the attendees to think in terms of a national association in order to promote and protect the screening industry. In November, 2002, Brownstein and The Background Investigator sponsored a large national conference in Tampa, Florida, attended by over 175 screening professionals. At this meeting there was widespread support for the formation of an association. A steering committee was formed to act as an interim board to start a background screening association   The members of the interim board were:

Les Rosen, Chairperson
Sandra Burns
Michael Sankey
Bill Brudenell
Charlotte O’Neill
Mike Cool
Jack Wallace

The interim board, along with other interested members of the screening industry, met in Arizona in January, 2003 and again in Washington D.C. in April, 2003 to form the association. The interim Membership and Ethics committee met in Dallas, Texas in the Spring of 2003. In order to provide seed money for the group, in early 2003 a number of screening firms stepped forward and generously donated the necessary funds to launch the association and to retain the services of a professional management firm, IMI Association Executives. A membership drive was held in the last half of 2003, resulting in over 200 members.  Firms that joined before the first election were entitled to use the phrase “Founding Members” with the NAPBS logo.

NAPBS began its first full year of operations with an elected Board of Directors in 2004. On March 29-30, 2004, more than 225 individuals representing over 175 companies converged on Scottsdale, AZ for the inaugural Annual Conference of the National Association of Professional Background Screeners. We have close to 700 members in 16 countries now. ”

ESR was pleased that its president, Les Rosen, was voted to be on the first board of directors and selected as the first co-chair of NAPBS.

The Six Biggest Job Applicant Lies

Although statistics vary widely, there is widespread agreement that a substantial number of resumes belong in the “fiction” section of the bookstore. The rate of fraud can be as high as 40% and higher according to different sources. Applicants certainly have the right to put their best foot forward, and puffing their qualifications is an American tradition. But when puffing crosses the line into fabrication, an employer needs to be concerned. When you hire an applicant who uses lies and fabrication to get hired, the issue is that the same type of dishonesty will continue once they have the job.

What are the six most common fabrications from job applicants? According to a nationally recognized background checking firm, Employment Screening Resources (, they are: 

  1. Claiming a degree not earned: Yes, believe it or not, applicants will make up a degree. Sometimes, they actually went to the school but never graduated. Some applicants may have had just a few credits to go, and decided to award themselves the degree anyway. On some occasions, an applicant will claim a degree from a school they did not even attend. The best practice for an employer is to state clearly on the application form that the applicant should list any school they want the employer to consider. In that way, if an applicant lies, the employer can act on the lack of truthfulness regardless of whether the educational requirement is part of the job requirements.
  2. Diploma Mills or Fake Degree: A related issue is diploma mills or fake degrees that can be purchased online. For those that actually attended classes, read books, wrote papers and took tests to earn a diploma, you apparently did it the old fashioned way. Now, getting a “degree” is as easy as going online and using your credit card. There are even websites that will print out very convincing, fake degrees from nearly any school in America. In fact, the author obtained a degree for his dog in Business Administration from the University of Arizona-and the dog had been dead for ten years. A transcript was even obtained and the dog got a “B” in English! Some sites will even provide a phone number so an employer can call and verify the fake degree. Some of the degree mills even have fake accreditation agencies with names similar to real accreditation bodies, in order to give a fake accreditation for a fake school.
  3. Job Title: Another area of faking is the job description or job title. Applicants can easily give their career an artificial boost by “promoting” themselves to a supervisor position, even if they never managed anyone.
  4. Dates of Employment: Another concern for employers is applicants that cover up dates of employment in order to hide “employment gaps.” For some applicants, it may be a seemingly innocent attempt to hide the fact that it has taken awhile to get a new job. In other cases, the date fabrication can be more sinister, such as a person that spent time in custody for a crime who may be trying to hide that fact.
  5. Compensation: A related issue is pay – applicants have been known to exaggerate compensation in order to have a better negotiating position in the new job.
  6. Lack of Criminal Record: Nearly every application will have a question about past criminal conduct. Although employers may not “automatically” eliminate a job applicant without a showing of a “business necessity,” if the person lies, then the employer would have grounds to deny employment based upon dishonesty.

The common denominator in all of these: they can be all be discovered by a program of pre-employment screening. To quote a phrase popular in the 1980s. “Trust, but verify.”


Lester Rosen has authored two books: The Safe Hiring Manual: The complete guide to keeping criminals, terrorists, and imposters out of your workplace,” and The Safe Hiring Audit: The employer’s guide to implementing a safe hiring program.”    He is a frequent presenter nationwide at human resources, fraud and security conferences om employment screening background checks, and the Fair Credit Reporting Act (FCRA).  He was the chair of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as its first co-chair. He has testified as an expert in negligent hiring cases in California, Florida and Arkansas.

Background Checks and New Legal Hotspots and Latest Trends in Employment Screening

Rmployment Screening Resources (ESR)  is giving a webinar on November 18, 2009 on behalf of the Institute of Management and Administration (IOMA).   The details are at 

Here is the IOMA program description: 

Did you know? If your company hires a dangerous, unqualified, or dishonest candidate and harm occurs on the job, your HR department risks a lawsuit. Your company also runs the risk of lost business and a damaged reputation.

In short, just one bad hiring decision could put your company out of business.

And, while background checks are THE go-to solution to vet potential new hires, the size and scope of the legal, privacy and security concerns surrounding them have all but exploded in the age of Social Networks.

There are concerns and confusion surrounding the use and over-use of Facebook, LinkedIn and other social networking sites, lawsuits looming over inaccurate background screening reports, and increasing government scrutiny of the screening industry. Regardless, businesses still need to make sure they are not only exercising due diligence but are also staying ahead of the curve on legal issues.

The quickest way to get sued is to not understand the legal environment and latest trends surrounding background checks and employment. Don’t let your company take that risk!

Join us for this critical presentation and learn the legal dos and don’ts of employment screening, background checks and other hot-button hiring issues, such as illegal interview questions and the hidden dangers of using social networking sites.

This 90-minute interactive webinar, featuring Les Rosen, attorney-at-law and founder of Employment Screening Resources, will explore:

  • When a background check can and should be done
  • What needs to be revealed to the applicant (before and after the background check is complete)
  • What critical steps to take if the check comes back positive for criminal, civil, or financial irregularities—and how to use that information properly
  • Which data is appropriate to gather such as school records, credit reports, past employment, and criminal records
  • The pros and cons of utilizing internet sites and how privacy and discrimination laws apply
  • Whether federal and state governments will require more background screening in 2010
  • Why more businesses will make pre-employment background screening a requirement in the hiring process
  • The legal risks associated with “one button” clicks for background checks generated from applicant tracking systems
  • The role consumer privacy will play and why data protection and accuracy are critical
  • The impact government regulations and offshore data processing will have on the demand for background checks
  • The future outlook and probability of lawsuits against both employers and background screening firms 

You’ll also get answers to your toughest questions in the LIVE Q&A session following the presentation. AND, you can invite your entire team, for one low price!


Lester S. Rosen,
Attorney at Law, Employment Screening Resources (ESR)

Mr. Rosen is an attorney and President of Employment Screening Resources (, a national background screening company located in California. ESR was rated as the top screening firm in the US in the first independent industry study. He is the author of The Safe Hiring Manual–Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace. He is also a consultant, writer and frequent presenter nationwide on pre-employment screening and safe hiring issues. He has qualified and testified in the California and Arkansas Superior Courts as an expert witness on issues surrounding safe hiring and due diligence. His speaking appearances have included numerous national and statewide conferences.

Workplace violence and employment screening background checks

An excellent article on how employers can deal with workplace has appeared in the Coshocton Tribune in Ohio.  It was written by Ohio human resources consultant Jim Evans is president of JK Evans & Associates LLC, a Zanesville-based human resources consulting firm. 

The article recounted some recent incidents of workplace violence and reminded employers and managers that they are tools to prevent and deal with workplace violence.  For example, employers should have policies on how to deal with workplace misconduct, and managers should be trained to recognize the warning signs and how to deal with it.  The article also cites due diligent in hiring as an important tool to avoid bad hires and to demonstrate due diligence in hiring.  See: 

This article underscores the critical role of pre-employment background screening plays in the hiring process.  For employers, there are a number of resources available to accomplish employment screening.  Setting up a program is very quick and easy, and the cost is minimal compared to just one workplace incident.  As a general rule, screening employees cost less then their first day salary.  In fact, an employer can provide a great deal of protection just by a well designed application, interview and past employment checking process. 

For job applicants, background checks are NOT an invasion of privacy.  The items being checked are what a person has done in their public life, such as where they worked, where they went to school or if there are relevant criminal records. Applicants also have a great deal of rights under federal law to view any report and to correct errors, and must give their specific consent and be advised of their rights.  There are rules about using criminal records unfairly. 

The bottom-line is that workers also want the protection of a safe workplace with qualified co-workers that have the credentials claimed.  More information on how to conduct employment screening and available resources is available at A specific game plan for hiring is set out at:

California Case Demonstrates Outer Limits to Negligent Hiring Exposure

The case involved a plumber that was hired in 1999, even though the plumbing company knew the person had been convicted of domestic violence and/or arson involving the plumber’s ex-wife. Four years later, in 2003, the plumber performs a service call at the victim’s home. The plumber and the victim started a relationship that eventually turned romantic in nature.  About a month after the service call with the victim, the plumber was terminated for misuse of a company vehicle, drug and alcohol use and an allegation of threatening a co-worker.

By 2005, the victim apparently had enough and ended the relationship and applied for a restraining order against the plumber. The plumber shot and killed her and was convicted of her murder. Continue reading

Privacy and Data Protection in Background Check Screening Reports

Because background reports and background release forms contains sensitive and confidential information, efforts must be made to keep the contents private and confidential and only available to decision-makers directly involved in the hiring process.

The Report itself, along with the Release and Authorization forms signed by the applicant, should be maintained separately from the employee’s personnel file. They should be kept in a relatively secured area, in the same fashion that medical files or sensitive employee matters are kept. These reports should definitely not be made available to supervisors or managers other than those in the hiring approval process. For example, during periodic performance appraisals, an employer would not want a supervisor to have access to a non-performance-related confidential background report.

For screening firms with advanced internet systems, there is no need to physically download the report. It is available online. However, an employer needs to be assured that the screening firm has appropriate internet and data security, and the employer needs to maintain a system of strong password protections. It is important that authorized users do not share passwords with those not authorized, nor reveal the password in any manner. Some screening firms require the user to change passwords periodically as a security measure and to sign security agreements.

Typically, reports are returned to either Human Resources or Security Departments. Reports are reviewed for any negative information. If the report is clear, then the hiring manager is notified and the hiring proceeds. If there is a red flag or derogatory information, then the information itself is shared with the appropriate decision-makers. The physical report, however, should normally stay with HR or Security. This protects against confidential information wrongfully being made known generally within the company if reports are transmitted between departments either by means of a paper copy or electronically.

The question arises as to how long records and documents should be maintained after separation. Unlike Canada where privacy laws encourage the destruction of confidential data when no longer needed, there are no U.S. requirements that materials related to background screening be destroyed.  In fact, there are a number of state and federal laws that control document retention, and labor attorneys will typically advise employers on how long various documents must be retained. However, for purposes involving safe hiring and background screening, the recommendation by ESR is six years. The FCRA was amended in 2003 to lengthen the statue of limitations under the act to as long as five years. In addition, state laws often allow a one-year period to file and serve a lawsuit. As a workable general rule, a six-year retention period should serve employers, with the six years running from the termination of employment or, if not hired, from the time the decision was made not to hire the applicant.

Many screening firms now store reports indefinitely, and if the applicant used an online system, the consent and disclosure can also be retained indefinably.  However, if an employer downloads any data, or used a paper based consent and disclosure, then consider six years as the minimum.  Although technically there is no maximum period under federal law, it is still a best practice to periodically purge old data in order to minimize the amount of Personal and Identifiable Information (PII) that is available in the work environment.  After all, most identity theft occurs in the workplace.

If disposing of any information in a consumer report, it is important to follow regulations set out by the FTC pursuant to FCRA Section 628. Paper or electronic reports must be destroyed, pulverized or erased so it cannot be read or reconstructed. an employer must show due diligence when a shredding firm is hired. See:

For best practices when it comes to privacy in the workplace, see the recommendations from the Privacy Rights Clearinghouse available at: