James F. Mahoney, Attorney

August 2012

Have You Googled Your Employees, Applicants Lately?

Be careful: Using search engines or social media to research an employee or applicant constitutes a background check that is subject to federal law

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We certainly understand that hiring drivers involves more than fitting fannies-in-the seats.

Transportation companies (but pretty much all of us) should realize that the Fair Credit Reporting Act covers all employment-related background checks, not simply credit checks. Now there’s no issue that a simple Google search or a look at Facebook constitutes a background check that is also subject to the FCRA.

We only need to look towards two recent settlements – Spokeo and HireRight Solutions to see that the government is serious about the use or potential misuse of information gathered either directly by you or by a company you hire to do the investigation. You may not be directly affected by the $800,000 fine against Spokeo, but if you use DAC reports, take a look at the recent $2.6 million fine against HireRight.

In both instances the companies were accused of not taking reasonable steps to verify the accuracy of the information it was disbursing to potential employers. With HireRight, which denied the allegations, the FTC alleged it sometimes reported incorrect or multiple criminal interactions with law enforcement causing some applicants to be denied job offers. And you know where that leads.

If you use a consumer reporting agency to compile information used or expected to be used as a factor in establishing eligibility for employment, you must comply with the FCRA. You must obtain written authorization to conduct the background check; you must provide the individual with notice of his or her rights under the FCRA; you must give information about the credit agency. If you use information from the report involving the applicant’s background, and you take adverse action (employment or promotion), you must provide advance notice of your intent to do so and allow an opportunity to dispute the information in the report.

The EEOC offers some useful guidelines.