Question

2. Briefly discuss the legality of an employer rejecting a job applicant based on the contents of the individual's social networking profile.

Answer 1

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Complying With The FCRA:  Under the FCRA, employers must provide to job applicants (and employees) a disclosure that a consumer report/background check will be performed, and the employer should obtain the individual’s authorization to proceed with the check. Furthermore, the employer must provide notice to the individual if it will take adverse action (not hire the individual, for example), before the employer takes that action. The FCRA also requires an employer to provide a post-adverse action notice as well.

Importantly, the FCRA requirements do not apply to employers who perform their own background checks without using a consumer-reporting agency to obtain the information. Thus, for example, if the employer’s own human resources personnel, or if the hiring manager, performs social media research on a job applicant, the FCRA does not apply to those actions. And, of course, there are smartphone applications for this type of research. The FTCwarned a few of the companies providing these smartphone applications, but the FTC has not yet determined that an employer’s use of these smartphone applications are subject to the FCRA.

Consequently, employers should be sure to understand the requirements and procedures of the FCRA, and consult an employment attorney. Employers should also be sure to monitor the “apps” they are using to learn whether the FTC has opined about a certain smartphone application. Simply, as the law evolves, so must employer behavior.

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