Written By ESR News Blog Editor Thomas Ahearn
Attorney Lester Rosen, founder and chief executive officer (CEO) of Employment Screening Resources® (ESR), answered questions in an interview about presenting two sessions at the 2021 Society for Human Resource Management (SHRM) Annual Conference & Expo being held from September 9 to 12, 2021, in Las Vegas, Nevada.
Rosen will present “A Strategic Approach to a Legally Compliant and Effective Background Screening Program” on Friday, September 10, 2021, from 3:45 PM to 4:45 PM Pacific, and “The Use of Criminal Records in Hiring: Land Mines and Opportunities for Employers” on Saturday, September 11, 2021, from 2:30 PM to 3:30 PM Pacific.
Rosen was interviewed by Brett Farmiloe, founder and CEO of Markitors, about “Background Screening Programs & The Use of Criminal Records in Hiring.” Here are some questions and answers from the full interview at https://blog.shrm.org/blog/shrm21-interview-with-lester-s-rosen-background-screening-programs-the-use:
Hi Lester, for those of us who are not familiar with your work, can you please introduce yourself?
Thanks. I am a former criminal trial attorney that started a national pre-employment background screening company that has been rated the top enterprise screening firm in the U.S. recently, which we are very proud of. The firm is Employment Screening Resources (ESR). I have also written what many consider the definitive book on background screening, “The Safe Hiring Manual,” and was the chairman of the steering committee that founded the screening industry professional organization and served as the first co-chair. That organization is the Professional Background Screening Association or PBSA.
You’ll be talking about a strategic approach to a legally compliant and effective background screening program. What key areas of legal compliance should an employer audit to help hire the best candidates while avoiding legal fallout?
Background screening is actually fairly complicated and is governed by litigation, regulation, and legislation. The two big-ticket items for employers really revolve around the Fair Credit Reporting Act, or FCRA, and laws impacting the fair use and accuracy of criminal records. Both areas are even more complicated because each state has its own rules. There are also state rules impacting numerous additional laws concerning items such as the use of credit reports, social media sites, and pay secrecy laws. Employers are caught in that difficult situation where they not only need to exercise due diligence in who they hire, but they also need to follow all the rules, laws, and regulations that have been passed in order to protect consumers.
How is the Federal Fair Credit Reporting Act impacting hiring?
The part of the Fair Credit Reporting Act that regulates employment has been around since it was amended to take effect in 1997. However, it has not been until recently that the plaintiffs’ lawyers have discovered that the FCRA is a fertile ground for class action lawsuits even if it is based on highly technical violations that, in reality, have a little impact and cause no harm. The FCRA itself does not prevent employers from selecting the most qualified applicants. The FCRA essentially is designed to make sure that job applicants are treated fairly so that they know exactly what is being done and that accurate information is being reported.
What should employers understand about the impact of the EEOC guidance and “Ban the Box” on the use of criminal records?
Employment in the U.S. is undergoing a fundamental shift when it comes to criminal records. Employers need to be very much aware that criminal records can have a discriminatory impact on job applicants. The Equal Employment Opportunity Commission (EEOC) is concerned about systemic barriers to employment, and if criminal records are used to automatically reduce employment opportunities, that can have an oversized impact on protected groups. “Ban the Box” simply means that an applicant is not asked early in the process about a criminal record, since that can lead to an early knock-out punch and the applicant will never have the chance to demonstrate they are a good candidate. The background check comes later in the process at or after a job offer.
Your session features a review of the elements and defenses to negligent hiring lawsuits. Would you mind sharing a few of those elements and defenses that employers should be aware of in regards to negligent hiring lawsuits?
The big issue for employees is can they show if they are sued that they acted with due diligence in the hiring process. In other words, did the employer satisfy a reasonable duty of care in hiring? Employees are not expected to be perfect, and mistakes can happen. But an employer can certainly have reasonable policies and procedures in hiring to attempt to minimize a bad hire.
For those who can’t attend your Friday afternoon session in Las Vegas, what are your recommended actionable steps to avoiding being a part of the current explosion in class action lawsuits related to background checks?
The biggest cause of class action lawsuits are claims based on technical violations of the FCRA. First, an employer needs to use a screening firm that understands the FCRA and is also well advised to ask their legal counsel to review the forms the applicant is given, since that has been a big source of litigation. It’s not rocket science. Many of the FCRA class action lawsuits happened simply because employers did not do a legal review of their forms or procedures. Another potential trap for employers is not providing pre and post-adverse action notices. Just a simple audit of your compliance can go a long way towards reducing the risk of litigation.
Alright, last question. For anyone who won’t be able to make it to your talk about a strategic approach to a legally compliant and effective background screening program in Las Vegas, what do you want them to know?
Safe hiring really begins way before the background check. A background check occurs at the end of the hiring process, where the employer has or will be extending a job offer, and they want to make sure there is no negative or inconsistent information that they need to know about. However, firms need to look at their application, reference checking, and interview processes to make sure that they are hiring an honest applicant with the knowledge, skills, and abilities needed.
The 2021 SHRM Annual Conference & Expo will feature thousands of HR professionals, executives, people managers, and students gathering together to build workplaces where employees and employers may thrive even during these ever-changing times. To learn more about the event, visit https://annual.shrm.org/.
SHRM – the largest HR organization in the world – creates better workplaces where employers and employees thrive together. With more than 300,000 HR and business executive members in 165 countries, SHRM impacts the lives of more than 115 million workers and families globally. To learn more about SHRM, visit www.shrm.org.
Employment Screening Resources® (ESR) – a leading global background check firm ranked the number one screening firm by HRO Today in 2020 – offers comprehensive background screening services that empower employers to make compliant and informed hiring decisions. To learn more about ESR, visit www.esrcheck.com.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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