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The FCRA applies to searches of online background

June 3, 2011

Lots of employers use consumer reporting agencies to create background reports about potential employees.  These agencies typically use proprietary databases (sometimes supplemented by courthouse visits and other work) to create a report that can list prior addresses, provide prior criminal history, or indicate prior credit use.

Some employers want to go beyond this and look at a candidate’s internet profile.  Younger job candidates often have an extensive online presence, including a myspace page, a Facebook account, a Twitter account, and/or a blog.  Some of these are innocuous, but some of them indicate habits that employers might not smile on, like binge drinking on weeknights or recreational drug use.

Typically, an employer who wants to check a candidate’s internet profile will just run a Google search using the candidate’s name, look at the first few links that come up, and call it a day.  But a new company called Social Intelligence offers to do that work in a more standardized (and possibly more thorough) way.

Does the FCRA apply to the kind of formal internet background report that Social Intelligence creates?  The Federal Trade Commission has concluded that it does; it recently closed an investigation into Social Intelligence and advised it to ensure FCRA compliance.  Does the FCRA also apply to the kind of informal Google searches that employers do?  For example, must an employer disclose (per FCRA requirements) that it is going to do a Google search about potential employees?  Maybe; maybe not – it probably depends on whether you consider the results of such an informal search to be a “consumer report” as defined by the FCRA.  But it’s interesting to consider.  To be on the safe side, employers should probably make the disclosure in their job applications.

Categories: Uncategorized
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