INTERNET BACKGROUND CHECKS SUBJECT TO FAIR CREDIT REPORTING ACT PER THE FTC

September 12, 2011

INTERNET BACKGROUND CHECKS SUBJECT TO FAIR CREDIT REPORTING ACT PER THE FTC

The Internet has recently buzzed with stories about how the Federal Trade Commission (FTC) has given the official “OK” for Internet background checks of job applicants that would include up to seven years of information from social networking sites such as Facebook and Twitter that are in compliance with the federal Fair Credit Reporting Act (FCRA) regulating the collection, dissemination, and use of consumer information.

However, contrary to reports calling the FTC’s action an official endorsement, a recent blog on the FTC web site, The Fair Credit Reporting Act & Social Media: What Businesses Should Know indicates that Internet background checks using social media information simply must follow the same FCRA rules that apply to the more traditional information -employment and salary history, criminal records, and credit reports – that FCRA compliant background screening firms and employers have used in the past.

The FTC blog states that regardless of the type of information in a report that employers use when making hiring decisions, the rules are the same. “Companies providing reports to employers – and employers using reports – must comply with the Fair Credit Reporting Act.” The blog also mentions an investigation that the FTC recently dropped.

“The FTC staff recently looked at a company selling background reports that include information from social media to see if they were complying with FCRA. Staff’s letter to the company emphasized that when reports include information derived from social media, the same rules apply. For example, companies selling background reports must take reasonable steps to ensure the maximum possible accuracy of what’s reported from social networks and that it relates to the correct person. They have to comply with other FCRA sections, too – like providing copies of reports to people and having a process in place if people dispute what’s said about them in a report. In addition, companies must give employers who use their reports information about employers’ responsibilities under FCRA – like their obligation to provide employees or applicants with advance notice of any adverse action taken on the basis of the reports. Another key requirement: Companies selling background reports for employment must require that employers certify the report won’t be used in a way that would violate federal or state equal employment opportunity laws or regulations. Of course, given the sensitive nature of the information in reports, everyone – companies selling the reports and employers using them – has a legal obligation to keep them secure and dispose of them properly.” The FTC – the government’s consumer protection agency – had been investigating an Internet and social media background screening service that offered employers background screening reports containing information gathered from social networking sites. In a letter from the FTC dated May 9, 2011, the agency indicated they had completed the investigation and determined that no further action was warranted. The FTC letter concludes: “This action is not to be construed as a determination that a violation may not have occurred, just as the pendency of an investigation should not be construed as a determination that a violation has occurred. The Commission reserves the right to take further action as the public interest may require.”

A major issue facing both employers that use Internet background checks, and the firms that provide such services, is whether the information found in the Internet about job applicants is credible, accurate, and authentic – in other words, true. Employers should consider if what a job applicant says online is true, and if true, whether it would be a valid predictor of job performance, or whether it would be employment related at all, as well as non-discriminatory. After all, people have been known to exaggerate or make things up.

Employers need to make sure what they see online actually refers to the job applicant in question. There are cases of false postings under another person’s name on the Internet – a sort of “online identity theft.” If negative information is posted anonymously online, it may be “cyber slamming” where a person commits defamation without anyone knowing their real identity or sets up a fake website that does not belong to the supposed owner. Also, most people have “computer twins,” people with the exact same names online.

Under FCRA section 607(b), a Consumer Reporting Agency (CRA) performing background checks needs to exercise “reasonable procedures to assure maximum possible accuracy.” The issue is how to know what information is real or authentic before reporting it to an employer. If a social networking site contains negative information, how is the firm that supplies the information to go about verifying that it is accurate, authentic, and belongs to the applicant? If the search happens to turn up a criminal record, the obligations are even heavier.

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