All posts by Les Rosen

Use of National Criminal Databases No Substitution for County Courthouse Searches during Real Background Checks

A background check tool currently touted to employers as a “national criminal database” search from data aggregators who advertise access to a nationwide database full of millions of criminal records from all states can create an impression that employers are gaining access to all of the nation’s criminal records in one search. However, nothing could be further from the truth, and an emerging trend has employers realizing “national” databases may not contain accurate or complete information and are only a research tool that should never be substituted for a real “hands on” county courthouse search for criminal records. This is Trend Number 8 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading

Government Increases Action Against Consumer Reporting Agencies Using Background Checks in Violation of FCRA

The Federal Trade Commission (FTC) recently submitted written testimony to the U.S. Commission on Civil Rights summarizing the Fair Credit Reporting Act (FCRA) requirements that relate to the use of consumer reports in employment in protecting the rights of job applicants and employees under the FCRA, according to a news release available at  The FTC testimony on the FCRA – which promotes the accuracy, fairness, and privacy of information from Consumer Reporting Agencies (CRAs) – is an example of the trend of the government increasing action against CRAs violating the law. This is Trend Number 9 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading

Background Checks Becoming Integrated with ATS and HRIS to Create One Stop Shop for Screening and Hiring

In today’s technology driven business world, employment background checks are quickly becoming integrated with Applicant Tracking System (ATS), Human Resources Information System (HRIS), and other systems to create a virtual “One-Stop Shop” for screening and hiring. This emerging trend of background checks becoming integrated with ATS, HRIS, and other systems should increase in the coming year. This is Trend Number 10 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading

Court Holds Federal Fair Credit Reporting Act Is Constitutional and Does Not Violate First Amendment

A large background screening firm facing a class action lawsuit alleging inaccurate reports in violation of the federal Fair Credit Reporting Act (FCRA) failed in its attempt to have the FCRA declared unconstitutional on the basis that it violates the right to free speech under the First Amendment. A Pennsylvania federal court ruled on November 6, 2012 that the FCRA was constitutional since it regulated information disseminated for private purposes for a fee, and not to the public. More information about the ruling is available at Continue reading

Ohio Law Reforms Collateral Sanctions and Offers Protections for Employers Hiring Job Applicants with Criminal Records

The State of Ohio has passed new laws that will offer protections for employers hiring job applicants with criminal records.  The law, Senate Bill 337, which takes effect September 28, 2012, is an extensive reform of the collateral sanctions that impose employment restrictions and limitations on over 2 million Ohioans with misdemeanor and felony convictions. With SB 337, Ohio joins states such as Colorado, Florida, Illinois, Massachusetts, New York, and North Carolina in offering protections for employers that hire and employ rehabilitated ex-offenders from tort liability for negligent hiring and retention claims. The text of Senate Bill 337 is available at Continue reading

Background Screening Firms must Modify Forms Mandated by Fair Credit Reporting Act by January 1 2013

According to regulations from the Consumer Financial Protection Bureau (CFPB), three essential forms mandated by the federal Fair Credit Reporting Act (FCRA) used in the background screening process must be modified by January 1, 2013. The forms must be changed to reflect that consumers can obtain information about their rights under the FCRA from the CFPB instead of the Federal Trade Commission (FTC). The three forms in use currently indicate that the FTC is the agency consumers can contact with questions. The regulation with the original revised forms is available online here. For more current CFPB forms, read the ESR News blog ‘Consumer Financial Protection Bureau Announces New Corrected Forms Required by FCRA for Background Checks Starting January 1 2013′. Continue reading

Background Check Class Action against Employer for Violations of the Fair Credit Reporting Act Survives Challenge

In yet another class action alleging that an employer did not comply with the legal requirements of the federal Fair Credit Reporting Act (FCRA), a federal court in Maryland refused a motion to dismiss a class action that alleges that Domino’s Pizza failed to comply with the requirements of the FCRA, the federal law that regulates pre-employment background screening.  In a decision filed January 25, 2012, the Court did not rule on the facts, but ruled that the plaintiffs had made a sufficient showing to deny a motion by the employer to dismiss. In addition, the court refused to strike allegations that the conduct was willful, which means that the plaintiff faces statutory damages as well as potential punitive damages.

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Criminal Background Checks of Job Applicants by Employers Coming Under Greater Scrutiny by EEOC

With a recent survey showing nine out of ten employers conduct criminal background checks on some or all job candidates, the Equal Employment Opportunity Commission (EEOC) held a public meeting in July 2011 examining the use of arrest and conviction records by employers for criminal background checks to determine if the practice was an unfair and discriminatory hiring barrier to job seeking ex-offenders. The EEOC’s actions, coupled with the growing “Ban the Box” movement seeking to remove the criminal history question from job applications, shows that employer use of criminal records is under fire now more than ever. This is Trend Number 1 of the fifth annual ‘Employment Screening Resources (ESR) Top 10 Trends in Background Checks’ for 2012. To view the list of trends, visit Continue reading

Credit Report Background Checks of Job Applicants by Employers Increasingly Regulated by State Laws

In recent years, several U.S. states have passed laws regulating the use of employment credit reports of job applicants and current employees that have impacted the way employers conduct background checks. Seven states – California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington – currently have laws that limit the use of credit report checks by employers for employment purposes, with the most recent law, California Assembly Bill 22 (CA AB 22), taking effect January 1, 2012. Other states, and the U.S. Equal Employment Opportunity Commission (EEOC), are considering further restrictions on credit checks by employers. This is Trend Number 2 of the fifth annual ‘Employment Screening Resources (ESR) Top 10 Trends in Background Checks’ for 2012. To view the list of trends, visit Continue reading

Social Media Background Screening Checks of Job Applicants Becoming More Prevalent and More Controversial

Employers and recruiters have discovered a treasure trove of information about potential job applicants on social media sites such as Facebook, LinkedIn, and Twitter, and so-called ‘social media background checks’ are becoming more popular and prevalent than ever. However, the use of social media background checks for job applicants has become controversial and can present legal risks. Failure to utilize social media resources can arguably be the basis of a negligent hiring claim if an unfit person was hired for a position where a search of the internet may have raised a “red flag.” Conversely, employers face numerous landmines and pitfalls that can include that include privacy, discrimination, and accuracy issues. Lawsuits and developments in this area will likely be an ongoing topic in 2012.  This is Trend Number 3 of the fifth annual ‘Employment Screening Resources (ESR) Top 10 Trends in Background Checks’ for 2012. To view the list of trends, visit Continue reading