All posts by Les Rosen

Caution! Using Search Engines, MySpace or Facebook for Hiring Decisions May Be Hazardous to Your Business

By Les Rosen Employment Screening Resources (
Employers and recruiters have uncovered what appears to be a treasure trove of applicant information on the internet. By searching the internet and social networking sites such as Facebook or MySpace, recruiters feel they are effectively able to look under the hood and try to get into an applicant’s head.

Unlike the traditional hiring tools such as team interviews, psychological testing, calling past employers, and background checks, social networking sites hold out the promise of revealing the real applicant. Statistics from various surveys, news articles, and anecdotal evidence confirm that there is an increased use of social networking sites to screen candidates.

Stories from recruiters show why these sites are so enticing.

One recruiter recounts how she had found The Ideal Candidate for a prestigious consulting firm. Then, just out of curiosity, she ran the applicant’s phone number on a search engine, and wow! Up popped some rather explicit ads for discreet adult services that the applicant was apparently providing at night. Another recruiter tells the story of finding an applicant’s MySpace page, where the intern had demonized his firm, his boss and his coworkers in considerable detail and by name.

Here is the usual approach for a recruiter utilizing the internet to screen candidates. Search by name for the candidate. Refine the search by taking the applicant’s name and then adding the terms Facebook or MySpace. Next, a recruiter can go to MySpace and Facebook directly and see whether they find a site belonging to the applicant. Depending upon how a user chooses to set his or her own privacy settings, finding information on a social network site can be very hit or miss. Also, a recruiter can search a blog search engine, such as Business sites such as Zoominfo or LinkedIn can be run.

This article, however, examines why such an apparently easy to use and readily available tool has its dangers and drawbacks.

No Court Cases of Record Yet

At this point in the evolution of social networking, there are no published cases yet on point. Lawsuits take time to work their way through the courts until an appellate court is finally called upon to issue an opinion. However, it is all but certain that some day an employer will land in court being sued on allegations of discrimination or a violation of privacy for making use of a social networking site in the hiring process.

One reason that the use of social networking sites presents a risk stems from their original purpose. In the beginning, users intended to limit access to friends or members of their own network, arguably creating a reasonable expectation of privacy. It’s like a cyber high school, but instead of seeing your friends near your locker, you can see friends and make contacts all over the world. Younger workers in particular may well regard invading their social network sites in the same way older worker may regard someone that crashes a private dinner party uninvited a tasteless act that violates privacy.

The conventional wisdom, however, is that anything online is fair game because any reasonable person must understand that the whole world has access to the internet.

When analyzing the privacy issues, an employer may want to take the Las Vegas test. Assume you are at a business meeting in Las Vegas, and at the end of the day you adjourn with professional colleagues to a cocktail lounge in the hotel lobby. Several drinks later, you engage in a very frank exchange about your employer or co-workers. You may be indiscreet or even act a little silly. How would you feel if a colleague took photos with a cell phone and sent them to everyone you knew, along with some of your more interesting comments? Technically, you were in public in a public cocktail lounge. True, but most people would still call it an invasion of privacy. This is based on an objective belief founded on broadly based and widely accepted community norms that what goes on in a private conversation should not be seen by the entire world, even if it occurred in a public venue where anyone could have seen or heard. For many young workers today, social networking sites are the equivalent of that Las Vegas cocktail lounge!

Even though they communicate and share photos in a forum that can be public, there is sense that what goes on in MySpace or Facebook stays there and should stay there. This argument is buttressed by the fact that in order to enter some social networking sites, a user must agree to terms of use and to get details of another site member, the new user must set up their own account. Additionally, these types of websites have terms of use typically do not allow commercial uses, which can include screening candidates. Since a user must jump through some hoops, it can be argued that there is an expectation that the whole world won’t be privy to confidential information.

On the other hand, a recruiter can argue that the routine terms of use language where someone simply hits the I agree button is not much of a privacy barrier. In addition, if an applicant fails to utilize the privacy controls provided by the website, that undercuts any reasonable belief that what was on the website would remain confidential.

This Issue Far From Being Settled

The bottom line is that the question of whether an applicant has a reasonable expectation of privacy can depend upon the specific facts of the case being litigated, and the issue is far from settled. Frankly, it could be decided either way.

That is why recruiters should not simply assume that anything on the web is fair game.

One area where an employer or recruiter would be flirting with particular trouble is if information from Facebook or MySpace is obtained by manipulating the sites. This could be done by creating multiple identities or by using “pretexting,” which can include pretending to be someone else or something you are not. For example, Facebook allows greater access into sites within your own network. If a recruiter were to violate Facebook rules and create fake identities just to join a network belonging to an applicant, that would likely cross over into the realm of employer behavior that is overly intrusive and invades too deeply into private matters.

Off-duty conduct is another tricky area. Some states have prohibitions limiting use of private behavior for employment decisions. However, employers do have broader discretion if such behavior would damage a company, hurt business interests, or be inconsistent with business needs

Is It Discrimination?

Discrimination can also become a substantial issue. A candidate may say or depict all sorts of things that reflect race, color, religion, national origin, ancestry, medical condition, disability (including AIDS), marital status, sex (including pregnancy), sexual preference, age (40+), or other facts an employer may not consider under federal law or state law.

This can give rise to the problem of “Too Much Information,” also popularly referred to as “TMI.” The employer’s own search of these sites can make an employer knowledgeable of factors that should NOT be considered for employment purposes. The issue then becomes: “How do you unring the bell?” How do you prove that you didn’t use the information you found as part of your hiring decision?

A related issue is whether a firm is treating all applicants in a similar fashion. If recruiters or human resource staffers are performing internet searches on a hit or miss basis, with no written policy or standard approach, an applicant that is subject to adverse action as a result of such a search can potentially claim to be a victim of discrimination. 

Also problematic is that on social network sites, a recruiter may view photos, personal data, discussion of personal issues and political beliefs, behavior at parties, and other information that an applicant may not have intended for the world to see. Employers may have to consider whether what a person says on their site is true, and if true, whether it would be a valid predictor of job performance – if fact, whether it would be employment related at all. After all, people have been known to exaggerate or make things up. They may believe they are just having fun or spoofing their friends.

Or if a site shows, for example, that an applicant has a tattoo or a piercing, what then? Employers may need to ask themselves whether having a tattoo is really a good reason not to hire someone.
Employers that hire younger workers may need to come to grips with new generational differences.

One rule to remember: If a website is searched by a background screening firm on behalf of an employer, then consent and certain disclosures is mandated under the federal Fair Credit Reporting Act (FCRA).

What’s REAL on the Internet?

In addition, how do you know what is “real” on the internet? How do you know that the “name” you found is your applicant? You don’t. With more than 300 million Americans today, most of us have “computer twins” (i.e. people with our names and even a similar date of birth). There is also the question of how does a recruiter even know for sure the applicant actually wrote the item or authorized its posting? How doe the recruiter know if its even true, or just a matter of someone being silly with their friend?

There are anecdotes on the internet of false postings under another person’s name – a sort of “cyber identity theft.” If anonymous information is posted, such as in a chat room, there is the new phenomena of Cyperslamming, where a person can commit defamation without anyone knowing who they are.

What Are the Lessons for Employers and Recruiters?

Using the Internet to screen candidates is not risk-free, especially when it comes to social networking sites.
There are no legal cases yet, but news travels fast on the web, and employers who rely overly much upon social networking sites may find that job applicants are not as eager to look at their firm.
If an employer or recruiter uses the internet, they should first consult their attorney in order to develop a written policy and a fair and non-discriminatory procedures.

For legal protection, employers should considering obtaining consent so that applicants are on notice that their web persona is fair game. Employers should not use any fake identities or engage in “pretexting” to gain access to information.

The most conservative approach is to perform an internet search AFTER there is consent and a job offer is made contingent upon completion of a background check that is satisfactory to the employer.
For job applicants, the advice is simple: Don’t be the last to know what a web search about you would reveal.

If you do not want employers looking at your social networking site, then set the privacy parameter to “restricted use only.” As a savvy applicant, you can even go on the offense and create an online presence that helps you get a job!

BIO: Lester S. Rosen is an attorney at law and President of Employment Screening Resources (, a national background screening company located in California. He is the author of, “The Safe Hiring Manual–Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace.” (512 pages-Facts on Demand Press), the first comprehensive book on employment screening. He also authored, “The Safe Hiring Audit,” (286 pages/Facts on Demand Press).

He is a consultant, writer and frequent presenter nationwide on pre-employment screening and safe hiring issues. He has qualified and testified as an expert witness on issues surrounding safe hiring and due diligence. His speaking appearances have included numerous national and statewide conferences.

Mr. Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) a professional trade organization for the screening industry which has over 300 members. He was also elected to the first board of directors and served as the first co-chairman in 2004.

ESR Releases Its Second Annual Top Ten Trends in the Screening Industry (2009 Edition)

ESR has identified the following trends for 2009 in its second annual report on trends in the screening industry and safe hiring.  The full report is online at:    

  1. Increased Governmental Mandates: The federal and state governments for 2009 are likely to require more background checks, especially in sensitive industries.  In addition, right-to-work verification under the E-verify program will be a hot topic for 2009.
  2. Privacy and Accuracy:  Privacy advocates in 2009 will be focused on resolving instances of noncompliance with the Fair Credit Reporting Act’s requirements for accuracy and dispute investigations.  A leading cause of inaccuracies comes from matching innocent job applicants to criminal records based upon the same, or a similar, name in a database, without re-verification of the record at the courthouse.  A new organization called Concerned CRA’s ( has taken a stance against utilizing such databases without taking proper measures to ensure accuracy of criminal records.
  3. Second Chance for Ex-Offenders: Unless as a society we want to build more prisons than schools or hospitals, something must be done to reduce recidivism and find employment for applicants with criminal records.  The State of New York, for example, to deal with this issue directly, has passed new “second chance” laws that became effective this year.  The laws place a greater emphasis on employers analyzing a past criminal record to determine whether there is a business justification to not hire a person, including providing job applicants with notice of these various new rights.
  4. Consumer Protection Litigation:  As the screening industry matures, and applicants and their lawyers become much more informed about their consumer rights, it is likely that there will be an increase in litigation in 2009.  These lawsuits, including class action lawsuits, will be filed against screening firms, particularly when it comes to various notices required under the federal Fair Credit Reporting Act and accuracy requirements for the Background Screening Report results.
  5. Impact of the Recession: As a result of the recession and higher unemployment, it is likely that employers will need to scrutinize applications even more carefully, to be on the watch for fraudulent credentials, such as inflated or fictional employment or education history.
  6. Data Security, Data Breaches, and Offshoring Data: Since identity theft continues to be a national and international problem, expect even more emphasis in 2009 on data security and protection.  Closely related is the continuing issue of employers and screening firms sending confidential consumer data offshore for processing to places such as India for cost savings.  Once data leaves the United States, it is beyond U.S. privacy protections.  Concerned CRA’s ( has also taken a stance against offshoring such data without notification to consumers.  The use of home-operator networks also presents an unnecessary risk to privacy as well.  There is no justification for personal information to be spread across kitchen tables and dorm rooms across America.
  7. Accreditation by the NAPBS: The non-profit trade organization for the Screening Industry, the National Association of Professional Background Screeners ( has announced the introduction of an accreditation program.  NAPBS has gone through an exhaustive process to develop “Best Practices” for the industry, and it is anticipated that firms will start going through the accreditation process this year. 
  8. Social Network Sites:  The use of social networking sites as a pre-employment screening device will continue to be a hot topic in 2009, as more recruiters and HR professionals go online to satisfy their curiosity about candidates.  The problem: contrary to popular belief, just because it is online does not mean that it’s a good idea to utilize it without developing policies and procedures.  Online material can be inaccurate, discriminatory, and under certain circumstances, its use can be an invasion of privacy.  Stay tuned as more courts give their opinions on this issue. 
  9. Integration of Services:  With the advent of “Web 2.0,” it is likely that technology will play an even bigger role in the coming year.  Seamless integrations with Applicant Tracking Systems allow paperless background screening systems at the click of a mouse.
  10. International Background Checks: With mobility of workers across international borders, Due Diligence is no longer limited to just what an applicant has done in the United States and there will be stronger demand in 2009 for International Criminal, Education, and past Employment checks.

Stacy the Drunken Pirate – a Federal Court Case in the MySpace Age

As ESR has noted in numerous presentations on the use of social networking sites such as Facebook or MySpace for employment, this is an evolving area of law that is still waiting for lawsuits to wind their ways through courts resulting in published judicial opinions.

An opinion was rendered by the United States District Court for the Eastern District of Pennsylvania on December 3, 2008.  Although this decision involved issues surrounding the awarding of a degree and does not deal with private employers, this appears to be the first published decision that deals with the  issue of utilizing a social networking page to deny a consumer an opportunity and may contain important lessons for employers. Continue reading

Dumb Criminals: It could be Funny if it wasn’t So Sad

Over the years, we have run into a number of “dumb criminal” stories. Some of our favorites:

  • A guy decides to rob the local liquor store where he has been going every day for the past year.  He uses a paper bag from a grocery store, but forgets to put holes in for the eyes.  During the robbery, he needs to pick the bag up where is seen by the clerk (who, of course, knows him very well).  As he leaves the store with the stolen money and booze, he manages to leave his driver’s license behind for good measure.
  • A criminal decides to defend himself in a theft case.  While cross-examining the victim, he asks. “And what exactly did I say as I was stealing your car?”

There is a website that has been collecting dumb criminal stories since 1999 that makes for interesting reading.  See:

New York Passes Four New Rules Affecting Background Checks to Help Ex-Offenders Have a Second Chance

Effective February 1, 2009, three (3) new rules go into effect in the State of New York designed to give ex-offenders a second chance of entering the workforce.  These rules affect both employers and background firms.  A fourth law, effective September, 2008, gives employers some additional protections against lawsuits for negligent hiring if they can show that an applicant with a criminal record was hired after good faith consideration of the rules affecting the use of criminal convictions.

Under existing New York law (Correctional Law Article 23-A), an employer is required to consider and balance various factors where an applicant has a criminal record (unless, of course, there is a statute that prohibits the employment of a person with certain convictions).  The factors are set out in New York Corrections law section 753 found at:

The factors enumerated in section 753 of Article 23-A include such things as:

  1. The duties of the job
  2. The relationship between the criminal offense and the job
  3. How long ago the conviction occurred
  4. The applicant’s age at time of the crime
  5. How serious the offense was
  6. Information produced regarding the applicant’s rehabilitation and good conduct.

In passing some of these laws, the New York legislature cited a 2007 study that found that New York employees were largely not familiar with New York laws on utilizing past convictions, or that a criminal record poses a significant barrier to employment.

In response, the three new laws require the following effective February 1, 2009:

1.    Provide a copy of Article 23-A:  An employer must provide a copy of Article 23-A to all job applicants undergoing a background check.  An employer may want to provide that notice at the same time the applicant signs a consent form and receives a disclosure form.  A technical reading of the statute may suggest such a requirement is limited only to a situation where an employer is requesting a special type of background report called an ‘Investigative Consumer Report,’  where information is obtained through interviews.  However, the legislature in New York, based upon the legislative history, clearly intended this to apply to all consumer reports.  As a best practice, employers should consider providing this notice regardless of the type of background report being conducted. 

2.    Posting a copy of Article 23-A:  An employer must also post a copy of Article 23-A in ‘a place accessible to his or her employees and in a visually conspicuous manner.’  Employers can simply download the copy of 23-A linked in this article.  The required notice will likely be included in commercial labor posters that come out in 2009 for the state of New York.

3.    Provide additional copy of Article 23-A if a criminal record is found:  Where a background report on an applicant contains information on a criminal conviction, the employer must again provide a copy of Article 23-A to the applicant. 

As part of the legislative approach, New York employers that follow Article 23-A now have increased protection from lawsuits for negligent hiring. This protection applies where an employer hires someone that has a conviction history but the employer has made a reasonable and good faith determination that, due to the factors in Article 23-A, the applicant should still be hired. In that situation, there is a ‘rebuttable presumption’ that evidence of the employee’s past criminal record cannot be admitted into evidence and be used against the employer. 

A ‘rebuttable presumption’ is an assumption of fact accepted by the court until disproved by the other side.  For example, evidence of the employee’s past criminal record can only be used in a negligent hiring case if the plaintiff can overcome the presumption by showing that there was not a reasonable and good faith determination by the employer under article 23-A.  This new protection can potentially provide employers that do hire applicants with a criminal record protection from a lawsuit as long as the employer can document  that the employer discovered the criminal record and then applied the criteria in Article 23-A in a reasonable and good faith manner.

ESR clients will receive a detailed memorandum and training in January on the details of these new laws in New York as well as some other ‘only in New York’ rules. This also raises issues on how employers that are not in New York need to deal with New York applicants or applicants that formerly lived in New York. 

The Story Behind the Story-Why States and Cities are Concerned about Second Chances for Ex-Offenders

There is an increasing awareness in the United States that ex-offenders are having difficulty obtaining jobs due to their criminal records.  Although employers have a duty to exercise due diligence to promote a safe workplace, civil rights laws also do not permit employers to automatically disqualify someone with a criminal record before considering if there is a business justification based upon the nature and gravity of the crime, the nature of the job and how long ago the job occurred.  As noted above, New York has added additional factors that can be considered.

As reported in past ESR newsletters, there have been efforts made to help ex-offenders obtain jobs. In its January, 2007 newsletter, ESR reported that a number of municipalities were not asking about past criminal records on the initial application. The short-hand name is “ban the box,” referring to the box on an application asking about past criminal conduct. The logic behind theses law is to ensure that applicants are considered for jobs based upon their qualifications and experience before the employer searches for criminal records. In addition, such protection also encourages ex-offenders to apply in the first place. Cities are concerned about the burden placed on them by large numbers of un-employed ex-offenders.  See:

In March, 2008, the ESR newsletter discussed a meeting of the Conference of Mayors in New York City on the same topic. According to a press release from the Conference;

“With 1 in 31 American adults in prison, jail, on parole or probation, the US prison system is in crisis. Hundreds of prisons nationwide are overcrowded to the breaking point, and high recidivism rates are largely to blame: 39 percent of prisoners have served three or more sentences. This cycling in and out of prisons is taking a devastating economic toll on already-vulnerable urban communities. At this critical moment, policymakers and experts are determined to come together and develop concrete solutions to making sure that people who leave prison do not reoffend and go back.”


In the September, 2006, edition, ESR reported on lawsuits for discrimination based upon ex-offenders denied employment.

In passing the new laws in New York, the New York legislature gave as a justification that up to 60% of ex-offenders are unemployed one year after release and there is a strong correlation between unemployment and recidivism.  The legislature cites statistics that, in New York State, eighty-three (83%) of individuals who are in violation of the terms of their probation are unemployed.  See (legislative justification contained in New York A07847)

The bottom-line: As a society, we do not want to risk the lives and property of people by bad hiring decisions. Employers who fail to exercise due diligence can be sued, and innocent consumers, co-workers and members of the public can be the victims of workplace violence, theft or other wrongdoing.     

On the other hand, our society does not want to create a permanent class of unemployable ex-offenders who can never re-enter society and be productive. Automatic rejection of any applicant with a criminal record makes it very difficult for an ex-offender to get back into the workforce. Given that, on the average, it costs over $30,000 a year to incarcerate a prisoner in the United States, and that without a job it is very difficult for an ex-offender to become a law abiding tax paying citizen, it is critical that society gives everyone an opportunity to work. Unless ex-offenders can get a second chance, our society will spend more time and resources building prisons instead of schools, hospitals and roads.

The key is to understand that there is a job for everyone, although not everyone is qualified for every job. Employers should not overreact or react automatically because an otherwise qualified applicant has had difficulty in the past unless there is a business justification to reject the applicant. However, this pre-supposes that employers are doing proper screening and practice due diligence in their hiring.

It is also important for our society to help with the re-entry of ex-offenders by supporting programs and opportunities. In fact, the National Association of Professional Background Screeners ( has donated money to such programs.

Background screening firms are often caught in the middle of this debate.  Although a screening firm does not make the hiring decision, screening firms are retained by employers to research potential criminal records.  A background screening firm should clearly advise employers that there are limitations on the use of criminal records.

How a Simple Background Check Could Have Saved Investors $340 Million

A shocking story in the December 7, 2008, San Francisco Chronicle recounts how investors lost $340 million, over one-third of a billion dollars, invested in a start-up firm that went bankrupt due to a dysfunctional CEO named John P. Rogers that was only minimally background checked.

The firm was developing “pay by touch” machines for biometric payment at checkout stands. “Pay By Touch” lost $137 million on $600,000 in revenues in 2007, according to the news story, and the firm was in total disarray.  According to news reports, the CEO engaged in drug abuse, partying and other excesses, such as instructing his staff to give jobs and shares of stock to women he met.

Smart investors, including two billionaires and Venture Capitalists, were among the people hoodwinked into investing millions of dollars.  A nationally known wealth management investment firm, according to the new story, continued to ensnare investors, including NFL players, even after the firm was in trouble and even though it did not do a background check.

According to the article, there was plenty in Roger’s past that would have demonstrated that no sensible person would have invested in this endeavor.  The Chronicle uncovered civil judgments and other run-ins that would have been big red flags for rational investors.  The matter is now in litigation.  The full incredible story is available at

What is even more incredible is that the cost of doing a due diligence check on a CEO, partner, joint venture or other investment is de minimis.  There are numerous sources of information available to professionals that could have potentially saved investors from this type of debacle for less than some of these investors may spend for a nice dinner.

ESR offers a service called an “Integrity Check,” designed to conduct due diligence in critical business relationships, such as appointing members to a board of directors, entering into a joint venture or other business relationship, acquiring a business, investing in a business or numerous other situations where the integrity of who you are dealing with is critical.   For more information on in-depth integrity checks when it comes to investment and business dealings, see:

Everyone at ESR wishes you a Happy Holiday Season.

ESR will be closed this year the days after Thanksgiving (11/27 and 28), Christmas (12/25 and 26) and New Years (1/1 and 2) in Observation of those holidays. Please contact Customer Service if you have any questions.

New Group Forms to Promote Privacy Protection by Agreeing not to Send Data Offshore

An important issue for employers in working with a background screening firm is knowing exactly where the screening firm is sending an applicant’s personal and identifiable information, or PII. Identity theft is a significant issue for Americans, and if an identity is stolen, it can take years to clean up the mess, cost a great deal of money and cause untold grief.

However, there are some background screening firms that seek to lower their costs by off-shoring screening functions to countries outside of the United States.  One of the problems with off-shoring is that once data leaves the United States, the data is beyond the reach of U.S. privacy laws.

To address this issue, a number of background firms have banded together and have voluntarily adopted a standard that they do not off-shore domestic verifications, and precautions are even taken with international verifications to protect PII.  See ESR is a subscriber to the no off-shoring standard. If a firm is not listed on that site, an employer is well advised to inquire if any data is sent offshore and, if so, what protections are in place.

The Story Behind the News: ABC News Reports Dozens of Lawsuits over Inaccurate Criminal Reports Stemming from Database Searches

According to a story from ABC News on October 13, 2008, there have been dozens of lawsuits in the past two years alleging that background checks have cost people jobs because they were inaccurately identified as criminals when in fact they were not.  The story focused on the use of massive criminal databases, where private firms have aggregated millions of records that are not always accurate.  See:

The inaccuracies come in two varieties:

  1. The criterion used in the database is “name match only” and reports a criminal record that in fact belongs to someone else.  That is because such database searches may not always contain identification data, such as date of birth.
  2. The database contains criminal records that are outdated and should not be considered by employers, because something occurred after the data was obtained which makes the record non-reportable, such as a deferred adjudication, expungement, a judge’s order that records be sealed or some sort of judicial “set aside” under state law.

Here is why these errors occur; Under the federal law that regulates pre-employment screening, the Fair Credit Reporting Act (FCRA), a screening firm has two options when it comes to the use of these private databases.  Under Section 613 of the FCRA, a screening firm can either re-verify the criminal database records at the courthouse to ensure it is current and up-to-date OR send a contemporaneous notice to the applicant advising them that a criminal record is being reported about them.

The problem arises in situations where a screening firm chooses to utilize the “notice” option and does not go to the courthouse to ensure the record applies to the applicant and is proper to report.  Although that is a legal practice under the FCRA, it is also a reason that some background reports contain information that does not relate to the applicant or should not have been reported, sometimes referred to as a “false positive.”

It should be noted that this is NOT an issue in California, since that is the one state that specifically requires a screening firm to ensure that public records are current and up-to-date.  California law does not permit a screening firm to simply report what is in a database and send a notice to the applicant.

It is also critical to note that such databases can also contain “false negatives,” which means that person with a criminal record is falsely identified as being clear.  This can happen because these private databases are a crazy quilt patchwork of data from a number of sources, with wide variations in accuracy, completeness and timeliness.  Also, a number of jurisdictions do not report any data at all to these databases.  For example, such a database is of little use in some large states like California or New York where little data is reported or identifiers are not provided.  Although such databases can be valuable because they contains millions of records, they are best used as a pointer or lead generator for places to look for records, and should not replace court searches of counties where a person has lived or worked unless the database contains the same information that is available at the courthouse.

In response to these concerns, a number of screening firms, including ESR, have adopted standards that would prevent inaccurate criminal records from databases.  This is also part of the Concerned CRA standards at:

The Concerned CRA standards are as follows;

A CRA that chooses to display the “Responsible Criminal Databases” seal is self-certifying that they subscribe to the following standards when using criminal records in databases in the context of employment-related screening, exclusive of the screening of volunteers, tenants, and other non-employment relationships:

  1. Criminal records databases compiled by non-government entities will only be used as indicators of possible records. Prior to making any report about a potential or current employee to an employer about a criminal record from a database, the CRA will verify the information directly with the reporting jurisdiction. This ensures that employers make decisions based on accurate and up-to-date information.
  2. When using these databases it is important that current or prospective employer clients are provided information about the limited nature of criminal records databases and the importance of researching each applicant’s criminal history in the jurisdictions in which the applicant currently or previously has lived or worked.

For more information, contact Jared Callahan at ESR at or by phone at 415-898-0044.

Recruiters and Background Checks – How to Speed up the Process

The life cycle of a background check is often in conflict with a recruiter’s time constraints to fill a position.  This blog explores how recruiters can help speed up the process.

Part of the on boarding process for most in-house recruiters is the completion of the pre-employment background check.On the other hand, it is mission critical that employers exercise due diligence in their hiring. If an employer hires someone who turns out to be dangerous, unfit or unqualified, and some harm occurs where it was foreseeable that a bad hire could cause damage, then the firm can be on the hook for a negligent hiring lawsuit, not to mention all of the other costs, workplace problems, and negative publicity associated with a bad hire. Of course, a bad hire does not reflect well on a recruiter either.

The challenge for recruiters  is that they are typically under intense time pressure to complete the hiring process quickly and to get the new person started. In a perfect world, a recruiter would like to be able to go to a website such as to get an immediate “thumbs up” or “thumbs down.” However, no such site exists because much of the data needed to do a background check is simply not gathered ahead of time and data based in such a neat and tidy way. There is not even a comprehensive national criminal database that reveals an accurate criminal history. Most private employers do not have access to the FBI criminal database, and even the FBI database is subject to numerous sources of errors.

As a result, background checks are conducted by actually calling up schools and past employers and going to courthouses. A background check will typically take three days, and that is assuming the universe is cooperating. Of course, there will be delays if an employer has gone out of business or refuses to call back, or a school is closed for a holiday or requires a release or check sent by mail. If a high school degree needs to be verified, there are almost always substantial delays since each high school does things completely differently.  If the applcaint has a GED, the delays can be very long.  If an international background check is requested, there can be a substantial delay.  Further delays can occur if there are potential criminal record matches, and the court clerk delays producing the file that would help determine whether the case can even be reported under complex federal and state rules.

The end result is that the  life cycle of a background check is often in conflict with a recruiter’s time constraints to fill a position. The good news is that a recruiter can be pro-active in speeding up background checks in several ways.

Creating an Efficient Background Check Timeline

1. Recruiters must understand the process can be delayed if screening firms are sent incomplete information, or supplied with forms that are illegible or incomplete.

For example, screening firms often face difficulty in deciphering an applicant’s past employers or social security number. Since a screening firm is not expected to read hieroglyphics or be a “mind reader,” the screening firm has to contact the recruiter to clarify the information. Some screening firms will make their best guess and if they are wrong, the report is delayed even further, proving the old adage that “no good deed goes unpunished.”

Recruiters who review all applications for completeness, legibility and accuracy with the candidates before sending the applications to a screening firm will find their work is completed much faster.

2. An in-house recruiter needs to communicate with hiring managers to eliminate unrealistic expectations. A hiring manager may not understand, for example, that criminal records are searched at each relevant courthouse, or that delays can occur if there is a potential match and the court needs to bring files from storage.

Hiring managers must also be advised that employment and education verifications can be delayed for a number of reasons, such as schools that are on vacation or that require a check or release to be mailed, or employers that are closed, merged or refuse to cooperate. If there is a delay in receiving a completed screening report, the recruiter should examine the source of the delay.

3. If a recruiter is working with a screening firm that has an online ordering system, the process is considerably faster. Not only does this ensure accuracy, which makes the process faster, but it also avoids delays caused by sending a request to a screening firm and waiting for the firm to do manual data entry.

4. Finally, there are times when a recruiter should determine that even though the screening firm has not been successful in obtaining all of the information, enough data is available to make a hiring decision. This typically happens in the area of verifying previous employment. When conducting employment verifications, often times the earliest employment is the most difficult to obtain. However, it may also be the least relevant. If the applicant, for example, worked in a fast food restaurant six years ago after getting out of school and the fast food place will not call back, then there may be no reason to delay the hiring decision, especially if the screening firm has obtained the most recent, and presumably more relevant, job verifications.

5.  It is also important to understand there is a difference between screening and investigation.  Screening is a high volume process, typically done at a low price point so large numbers of people can be reviewed, typically within 3-4 business days.  Investigation on the other hand is much more intense and in-depth endeavor, where each applicant is the subject of increased focus.  However, it much more expensive.   A recruiter or employer cannot reasonably expect to receive investigative level services at screening prices. 

Experienced recruiters understand that background checks are not only a critical part of the hiring process, but are a great deal more complicated than merely putting a name in a database. A competent background checking process requires specialized knowledge, resources and experience. This is particularly true since employment screening is a highly regulated area. The best way to speed up the process is to understand exactly what is involved in facilitating the smooth flow of accurate data.