In remarks made at the Society for Human Resource Management (SHRM) Employment Law and Legislative Conference held recently in Washington, DC, Lester Rosen, an Attorney and the author of ‘The Safe Hiring Manual,’ said every employer has a legal duty to exercise due diligence in hiring and employers that do not perform employment screening risk ending up as defendants in negligent hiring lawsuits, this according to the article ‘No Background Screening? Call Yourself ‘Defendant’’ on HR Daily Advisor.

Rosen, the founder and CEO of Employment Screening Resources (ESR), a nationwide background check provider located in Novato, California accredited by The National Association of Professional Background Screeners (NAPBS®), said employers can be sued for negligent hiring if they hire someone they knew, or in the exercise of reasonable care should have known, was dangerous, unsafe, dishonest, or unfit for the particular job. Rosen also claimed statistics show that employers lose those cases more often than not.

“According to a recent California survey, employers lose 60 percent of negligent hiring cases with verdicts averaging about $3 million, and average settlements around $500,000 plus attorney fees,” Rosen said. “Courts tend to assume that if you could have known, you should have known. So how much checking should you do? The jury will tell you.”

Rosen, who was presenting this session as part of the ‘ESR Speaks’ background check training program, also detailed what employers need to know to perform employment screening.

EEOC Implications of Criminal Records:

According to Rosen, the Equal Employment Opportunity Commission (EEOC) says employers cannot automatically disqualify job applicants based upon a criminal conviction without a business justification, taking into account the nature and gravity of the offense, nature of the job, and time elapsed. Rosen also said employers should be aware that some states and cities have “banned the box” – they don’t permit a question about criminal records on application forms – to promote a second chance for convicted felons to find work. Also, since arrest records are of limited use, Rosen said employers need to locate and evaluate underlying behaviors if possible.

Application Forms:

Rosen said it is critical for employers to specifically ask if the applicant has been convicted, or has pending charges, unless regulated by a “ban the box” rule. In addition, employers should:

  • Use the broadest legal language about both felonies and misdemeanors. Don’t leave out misdemeanors. Misdemeanors sound like petty crimes, but some serious crimes are misdemeanors, for example, some forms of assault or stalking.
  • Mention on the application form that a criminal conviction does not automatically eliminate a candidate from consideration.
  • State that any material lie or omission can constitute grounds to terminate hiring or employment.

Past Employment Checks:

Past employment checks are as critical as criminal checks, according to Rosen, and employers should verify past employment to determine where a person has been even if they only get dates and a job title. Otherwise they are hiring a stranger. Employers should also:

  • Look for unexplained gaps in past employment.
  • Search out locations of former employers to know where to search for criminal records.
  • Verify that a person was gainfully employed in the last 5-10 years, which makes it less likely that he or she spent long periods in custody.
  • Be aware that roughly 40 states now provide some immunity for past employers giving good faith references.

Rosen said that even if employers do not succeed in getting reference information, just attempting to get them, and documenting the effort, demonstrates due diligence. To indicate the kind of people employers would be dealing with if they failed to perform employment screening, Rosen told of the client who, when admitting his guilt for a murder, also said: “But look at all the people I haven’t killed.”

For more information about the ‘ESR Speaks’ background check training program featuring safe hiring expert Lester Rosen, visit

About Employment Screening Resources (ESR): Founded in 1997 in the San Francisco Bay area with a mission to help employers and employees maintain safe workplaces, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is Accredited by The National Association of Professional Background Screeners (NAPBS®) and is a Designated E-Verify Employer Agent helping U.S. businesses maintain legal workforces. For more information about Employment Screening Resources, visit or email ESR News Editor Thomas Ahearn at [email protected].

No Background Screening? Call Yourself ‘Defendant’

No Background Screening? Call Yourself ‘Defendant’

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