All posts by Les Rosen

Hot off the Press: 32,000 Consumers Sent Notice that Their Data was Breached from a Data Firm

According to a story off the newswires, a division of a large company has issued data breach notices to 32,000 people on Friday, to tell them that, “sensitive, personally identifiable information about you may have been viewed by a few individuals who should not have access to such information.”

Some of the information obtained by criminals was used to set up credit cards.  This underscores the risk that any business has when large amounts of data are collected  Contact ESR for more information on data protection and privacy.

Time for the Yearly Check-Up: Due Diligence 22 Question Check-Up

In the ESR April, 2009 Newsletter, ESR suggested that employers should consider a yearly due diligence check on the firms that provide due diligence.   An essential element of any due diligence plan is a yearly audit of your current practices.  In the event of a worst case scenario, and an employer hires someone that is unfit, unsafe or unqualified, the best defense is that the employer exercised due diligence in its hiring practices, including the choice of a screening firm.  ESR has developed a checklist that can be used to send to a screening provider every year to document your due diligence and to measure the effectiveness of your current screening program. 

Number 2 on the list:  Is all work performed in the USA to protect privacy and control quality (i.e., nothing sent offshore to India or other places)?  If not, please explain in detail how privacy is protected. (See: http://www.concernedc

This is a critical consideration.  Once private data on Americans go offshore, it is beyond U.S. privacy laws. Even if the offshore facility is owned or operated by a U.S. firm, there is still the potential for identity theft.  Of course, identity theft can occur in the U.S. as well, but at least consumers have recourse and protection. How can a U.S. worker possibly contact the police in India or some other country to ask for an investigation of identity theft?  It is also difficult sometimes to prove how identity theft occurred, so the fact the foreign operation center was opened or operated by a U. S. firm is not of much help to an identity theft victim who may not be able to prove that is where it occurred.

The bottom line:  There is no good reason to offshore personal data for processing except to make more money for the firm that offshores. 

The entire list is located at:

For a Word version, contact Jared Callahan at 415-898-0044 or email him at

Background Checks in California: Special Rules

When it comes to many aspects of human resources, including background checks, the rules in the independent Republic of California are completely different then the other 49 states.  Background checks in California can present many traps for the unwary that simply assume that national forms and procedures will work in California.  This becomes a problem particularly for California employers that utilize out of state background firms.  Some businesses that are owned by an out of state company  that has a national contract for screening services can find themselves  potentially in violation of California law since the out of state screening firm may have insufficient knowledge of California laws.  The real problem: Under the California Investigative Consumer reporting Agencies Act, Section 1786.50, an employer can potentially liable for $10,000 per violation of California law.  Although there are no cases on that section, not understanding California law can cost an employer.

ESR President Lester Rosen had the opportunity of working with the California legislature 2002 and helped to draft the current California law regulating background checks. and to testify before the state legislature. 

Some of the  areas where California is different includes the certification form a client must sign, special wording on the first page of the background report, special wording that MUST be in the disclosure provided to the consumer, a special check-of box for a free report, a required Spanish version  form of rights that must be made available to all consumers if they object to the report, special procedures to assist consumers with questions, and a number of limitations on what can and cannot be reported.  An article about some of these requirements can be found at:



ESR to Present on Utilizing Social networking sites such as Facebook, MySpace, Blogs and Twitter for applicant screening

ESR President Les Rosen will be presenting a webinar on May 1, 2009 on behalf of Intern Bridge called, “The Use of Search Engines and Social Networking Sites to Screen Candidates: Landmines and Pitfalls.”

Job applicants have long used the internet to research employers. But now, employers are using the internet to research job applicants as well. Employers aren’t only using search engines to find information on applicants but are now examining social networking sites, such as Facebook or MySpace. For job applicants of course, social networking sites are places to interact with peers in any manner they choose. Entries on these sites are typically not meant for employers to view. Employers tell anecdotes of avoiding serious mistakes by using these tools. Conversely, some job applicants feel they have been denied opportunities unfairly by employers or recruiters snooping on social Web sites and viewing materials out of context or Web entries meant just in fun for friends.

This interactive webinar will review this emerging area of recurring and employment law, examining the pros and cons of employers utilizing such tools and the legal landscape. Topics will cover how and why employers 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, we will examine approaches that employers and applicants may consider.

Intern Bridge is an expert at internships and is dedicated to creating exceptional new internships and improve existing internships throughout the nation.

For more information, see:

You are in Trouble When: Your Screening Firm Uses a Home Based Operator Network

This is the first of a ten part series designed to alert employers of potential danger and hidden liabilities in their background checking processes. Each month ESR will examine a different area that can potentially put unsuspecting employers in hot water.

Some employers have assumed that all background firms are the same, so you may as well just select the cheapest. That is the same thing as saying you should pick a lawyer or any other provider of professional service just based upon price. The reality is that background screening is a knowledge-based professional service, and what your background firm does not know can cost an employer dearly in legal exposure and financial costs down the road if the employer makes a bad hiring decision.

There are ways for background firms to cut costs that leave employers vulnerable. For example, some firms use “at-home” operator networks to perform employment and education verifications. The advantages to the screening firm are numerous. The screening firm gets cheaper labor on-demand, without having to hire workers, provide office space or computers, or pay benefits, vacation time, or workers’ compensation. Since the cost of labor is one of a screening firm’s biggest costs, some firms see this as a way to lower their costs and to increase profits.

Unfortunately, this practice puts the employer at risk. Employers should very carefully consider the dangers of using a screening firm that utilizes a home-operator network for domestic verifications. Do you want your job applicant’s personal and private information spread out in living rooms, kitchen tables, and dorms across America? What about the lack of quality control and standards? In addition, there is an issue as to how at-home operators are trained and monitored for quality control. Employers are strongly advised to avoid the use of screening firms who are willing to sacrifice quality and privacy just to increase their profits at your expense.

Another area of concern is whether such home workers are properly classified. As a general rule, an employer cannot classify someone as an independent contractor when, in fact, they are essentially an employee. Many of the arrangements that involve home-based operator networks can raise significant issues if the home workers are improperly classified as independent contractors, while in fact they are providing a core service of the screening firm, working under the control and direction of the firm, and are not, in reality, an independent business. In addition, failure to ensure a safe working environment or to pay into a state’s workers’ compensation fund can further compound a difficult situation.

Employers should inquire of any screening firm whether they use a home operator network, or if all calls are conducted in the United States in a controlled call center environment.

Employment Screening Resources (ESR) Releases New Training DVD for Background Checks

ESR has released a press release today announcing the release of a professionally produced 36 minute video re-enactment of portions of a negligent hiring trial.

As the press release states,” The DVD of a negligent hiring trial, filmed in an actual courtroom, demonstrates opening statements, cross-examination of an HR professional, testimony from an expert witness, closing arguments, and jury instructions. The DVD includes re-enactment of a crime as caught on a surveillance camera. Part of the training process is for viewers to act as jurors and to deliberate in order to reach a “verdict” based upon the DVD. ”

The press release can be found at:

ESR to Attend NAPBS Meeting In St. Louis

Employment Screening Resources (ESR) will be attending the annual meeting of the National Association of Professional Background Screeners (NAPBS) in St. Louis in April, 2009.  ESR is proud to be a Founding Member of NAPBS.  ESR President Lester Rosen was the chairperson of the Steering committee that founded NAPBS and served as its first co-chair.  He also served as a chair of the NAPBS Education committee.  The first general meeting was in the spring of 2004, and 175 people attended.  NAPBS currently has 622 members.  ESR strongly recommends that employers only deal with screening firms that are members of NAPBS and have therefore shown a willingness to be part of a professional organization. 

Volunteers and Background Checks

A news article mentioned that a hospital volunteer was publically stating that he  would no longer be volunteering because he was offended by the healthcare organization  requiring a background check on volunteers. 


ESR believes that volunteering is about giving to others. When a medical organization request a background check, it is just a sign of the times, and sometimes mandated by federal law.  Someone who says they will not volunteer due to a background check either has something to hide, or is so self-focused that they do not see the bigger picture, but only see their own needs.  It is certainly understandable that someone that has been volunteering for a long time would initially be skeptical about a background check.  However, if it helps the organization comply with federal law and install confidence in the community, then a real volunteer should have the wisdom, insight and understanding to do what is needed for the greater good.  This volunteer may know in his or her  heart that a background check is not needed for them, but how can the volunteer be so certain that the vulnerable population being served, including the young and the infirmed, is safe from other volunteers that may not share the same  high moral character.  Who is the volunteer to decide that all volunteers are safe?  As long as the background check protects and preserves privacy, and is done fairly and uniformly, then a volunteer that refuses to do a background check requirement may not be the type of person the organization needs anyway.  A real volunteer understands helping people is what is important, and making a public dispute because their feelings are hurt is really hurting the people he is supposedly concerned about.   This volunteer needs to get over it, and perhaps not think its all about him. 

Ohio Case on Negligent Hiring Demonstrates that a Higher Risk Requires Greater Due Diligence


According to the April 7, 2009 The Chronicle-Telegram, published in Elyria, Ohio, a negligent hiring lawsuit was filed on behalf of a sleep clinic patient that was sexually molested by a staff member.  The article is at:

According to the article, the technician is currently 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.” 

The article did not recount the basis for the negligent hiring claim.  However, the case does demonstrate a crucial point about the due diligence and the responsibilities of an employerthe higher the risk, the greater the duty of care. 

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. In deciding how extensively to perform background screening, employers need to consider the risks involved. 

ESR Warns Employers about the Dangers of Screening Firms that use a Home Based Operator Network

Employers should very carefully consider the dangers of using a screening firm that utilizes  a network of at home operators for domestic verifications.   Such a practice puts the employer at risk.  Do you want your job applicant’s personal and private information spread out in living rooms, kitchen tables and dorms across America, not to mention the lack of quality control and standards.  Employers are strongly advised to avoid the use of screening firms who are willing to sacrifice quality and privacy just to increase their profits at your expense.  There is no justification to use a home operator network except to make money–it is NOT in the best interest of an employer.