Using social networking and internet search services to run background screenings on potential employees may violate the Fair Credit Reporting Act, according to security and risk management news site CSO Online.
"Simply surfing the net would likely violate the FCRA," said Michael Overly, a partner with law firm Foley & Lardner who specializes in privacy, security and information management, as quoted by the news source. "Employers have also been known to violate the terms and conditions of social media sites by using the information they obtain for purposes other than as authorized in those terms." According to the FCRA, the information obtained by employers essentially constitutes a consumer report, which cannot be used unless it is obtained from a credit reporting agency, consented to by the candidate, or the client has been provided with written notice. Additionally, social networking sites such as Facebook may reveal information about an employee belonging to a protected category such as race or religion, upon which employers cannot legally base employment decisions. Despite the risk of damages and liabilities, the practice of employers using the internet for pre-employment screening
is widespread. "Very, very few organizations understand these limits, and I would say use of social media information in violation of the FCRA is rampant," said Overly. In order to ensure that they are not violating any privacy laws while conducting background checks
, Overly recommended that companies go through reputable channels such as recognized credit reporting agencies, in addition to developing written policies pertaining to the collection of social media information by human resources and hiring managers. This will explicitly clarify what actions are and are not appropriate. "If a pattern or practice of discrimination was established and linked to the screening of potential employees based on what a hiring manager sees on a social media website, this could present a higher risk of adverse action," said Christopher Pierson, a privacy attorney, as quoted by CSO Online. "The laws that apply to social media and human resources are the same as what exist in the physical world." Employers who do not comply with these recommendations run the risk of being sued for violating state statutory laws. The specifics of these vary, but some states - including California and New York - have statutes that prohibit employers from interfering with the off-duty private lives of employees.