2022Human ResourcesAttorney Lester Rosen

Written By ESR News Blog Editor Thomas Ahearn

Attorney Lester Rosen, founder of Employment Screening Resources (ESR) and a noted background check expert, offered tips to members of the Society for Human Resource Management (SHRM) who watched him speak at the 2022 SHRM Talent Conference & Expo that was held in Denver, Colorado from April 10 to 13, 2022.

“Why do employers typically get sued for negligent hiring? Because they knew or should have known about an employee’s potential to cause harm,” Rosen said, according to the SHRM Employment Law Resource Publication “6 Tips for Employers on Conducting Background Checks.” written by Lisa Nagele-Piazza, J.D., SHRM-SCP.

“The background check is not to tell you who to hire but who not to hire,” Rosen said during a concurrent session conference about “The Top Ten Trends for Background Checks in 2022 – What Every Employer Needs to Know” that he presented at the 2022 SHRM Talent Conference & Expo on April 12, 2022.

Background checks are a critical tool for helping employers avoid liability for negligent hiring, but navigating the myriad federal, state, and local laws that govern such investigations can be a difficult task. Here are six tips from the SHRM article that Rosen said employers should keep in mind during the hiring and screening process.

  1. Check for potential issues from the start. Carefully review the application with a critical eye, Rosen said. Did the job applicant sign the application and release, identify past employers and supervisors, and explain why he or she left past jobs or has employment gaps?
  2. Use an accredited background screening company. Not all background screening firms are created equally, Rosen noted. In 2010, the Professional Background Screening Association (PBSA)—which was formerly called the National Association of Professional Background Screeners—created the Background Screening Agency Accreditation Program (BSAAP).
  3. Simplify the screening process. Make sure your screening system is intuitive and user-friendly, Rosen said. He also said an Applicant Tracking System (ATS) should be able to connect to screening firms with a simplified and intuitive applicant process.
  4. Beware of FCRA class-action lawsuits. The federal Fair Credit Reporting Act (FCRA) regulates employment screening and outlines consent, disclosure and notice requirements for employers that use third parties to conduct background checks on job applicants and employees. FCRA compliance involves “a lot of byzantine steps,” and many states have their own additional requirements, Rosen noted. “Millions and millions of dollars have exchanged hands because of these things,” Rosen said. He suggested that employers ensure all their forms have been reviewed by legal counsel, because it’s ultimately the employer’s—not the screening firm’s—duty to use compliant forms.
  5. Review requirements of “ban-the-box” laws. A number of states, counties, and municipalities have some form of “ban-the-box” laws that prohibit employers from asking about criminal history on job applications. Rosen noted that employment is the No. 1 tool used to reduce recidivism, the tendency of a person with a criminal record to reoffend.
  6. Understand limits on credit and salary history inquiries. “Don’t use credit reports across the board,” Rosen said. Some states have very specific rules on how employers can obtain and use such reports. Additionally, employers should be aware of state and local laws that ban or limit questions about salary history. Determining a new hire’s pay based on prior compensation may perpetuate disparities, Rosen explained.

Rosen is the author of “The Safe Hiring Manual” and a frequent presenter nationwide on safe hiring issues. He was the chairperson of the steering committee that founded the Professional Background Screening Association (PBSA) and served as the first co-chairman in 2004. He received the PBSA Lifetime Achievement Award in 2019.

On Tuesday, June 14, 2022, Rosen will speak at the SHRM Annual Conference & Expo in New Orleans, Louisiana, and Virtual from 3:30 PM to 4:30 PM Central Time in a session titled “The Use of Criminal Records in Hiring: Land Mines and Opportunities for Employers.” To learn more about the session, click here.

Employment Screening Resources (ESR) – a service offering of ClearStar, a leading provider of Human Capital Integrity℠ technology-based services – offers background check solutions that help HR professionals make informed decisions regarding workers and the workplace. To learn more, contact ESR today.

NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – 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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