The FTC has extended “public record sources” to cover information available on social networking sites. In May 2011 the FTC issued a letter regarding Social Intelligence Corporation (Social Intelligence), a social media background screening service, confirming that employers must comply with the requirements of FCRA when using public information furnished by Internet and social media background screening services like Social Intelligence.
FTC: “…companies must take reasonable steps to ensure the maximum possible accuracy of the information reported from social networking sites. They must also provide employers who use their reports with information about the employers’ obligation to notify job applicants if they were denied employment on the basis of these reports, and to provide such applicants with information about their rights under the Fair Credit Reporting Act (FCRA).”
To comply with FCRA Employers must (1) notifying the applicant or employee that they will be requesting a consumer report for employment purposes, (2) obtaining the applicant’s written authorization to obtain a consumer report, (3) providing a summary of consumer rights to the applicant, and (4) complying with adverse action procedures in the event that an adverse action (e.g., denial of employment) is taken as a result of the report.
Which companies are regulated by the FCRA?
An excerpt of the 1999 FTC advisory opinion states:
An entity that meets the definitional requirement for a “consumer reporting agency” (CRA) in Section 603(f) of the FCRA is covered by the law even if the only information it collects, maintains, and disseminates is obtained from “public record” sources. Section 603(f) defines a “consumer reporting agency” as any person “which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information … for the purpose of furnishing consumer reports to third parties …”. In turn, Section 603(d) defines a “consumer report” as the communication of “any information” by a CRA that bears on a consumer’s “credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living” that is “used or expected to be used or collected in whole or in part” for the purpose of serving as a factor in establishing eligibility for credit or insurance to be used primarily for personal, family, or household purposes, employment purposes, or any other purpose authorized under Section 604. If the commercial service you describe regularly provides information for the purposes set forth in the definition of consumer report in Section 603(d), the agency is a consumer reporting agency and the information it collects from public record sources and maintains in its computerized files is subject to the FCRA.
If employers are using information obtained from any “public record” sources, they need to be compliant with FCRA. They need to be aware of the liability created by using Applicant Tracking Software (ATS) that compares resumes and applications to Linked In and other social media sites.