Privacy is Dead: The Birth of Social Media Background Checks

Abstract

For years employers have used social networking sites (SNS) such as Facebook, Twitter, MySpace, Google, and LinkedIn to dig up incriminating evidence on prospective or current employees. Now credit reporting agencies (CRA) may conduct “social media background checks” on employees as well. The Federal Trade Commission (FTC) has given companies, like Social Intelligence, the stamp of approval to rummage around the Internet for anything a potential job candidate has done or said online in the past seven years. Both CRAs and employers must comply with the Fair Credit Reporting Act (FCRA).

This article addresses the legal ramifications of social media background checks and the difficulty in applying the FCRA to this new employment practice. A careful review of important provisions governing the FCRA and federal cases that have interpreted the statute illustrate the difficulty in holding CRAs liable for inaccurate or negligent reporting. This article focuses on the application of the FCRA to CRAs, employers, and SNSs. Additionally, the article will look at ways employees are contributing to an invasion of their own privacy. The social media background check practice may prove to be troublesome and detrimental to employees. The author proposes that the practice should be abolished as the risk of harm to employees outweighs the potential benefits to employers.

Keywords: employment, social media background checks, social networking site, SNS, Google, Facebook, Twitter, MySpace, LinkedIn, Federal Trade Commission, FTC, Fair Credit Reporting Act, FCRA, Employee, Employer, Credit Reporting Agency, CRA, Social Intelligence