While most of us accept this practice as a qualification for employment, others (mostly those denied position because of the content on their sites) have challenged the validity of these practices under the Consumer Reporting Act. The federal Act was amended in 1998 by the “Consumer Reporting Employment Clarification Act of 1998.” The legislature, recognizing the essential “make-or-break” function that a background check can play in gaining employment, wanted to make sure that REASONABLE PROCEDURES were used to create these reports.

The law was created most likely to deal with use of urinalysis, credit, and criminal history for the purposes of qualification for employment. The conventions of the internet and social networking sites were not likely contemplated, and the broad language of the Act has left interpretation of legislative intent to the Courts.

The case law, however, indicates a very deferential standard, and as mentioned earlier, the reporting agency need only use REASONABLE PROCEDURES, the specific report need not be accurate. For example, in one case a credit reporting agency accidentally reported the bankruptcy of another person with the same name as the applicant. The court held that even though the report was inaccurate, the Agency’s procedures for collecting and reporting generally accurate, and was not held liable.

Is looking at Facebook or Twitter an ACCURATE PROCESS? Further, even though the owner of the site posts the information, is it 3rd party information because it’s collected from a website and not the person directly? — There are different standards of liability if it is. Facebook and Twitter are account based, is this information private and therefore should not be subject of a background check?

These are some of the questions that the court’s are dealing with, but it seems that most will allow the use of such information in background checks. Again, I want to reiterate the test is whether the procedure was accurate, and not whether the report that is subject of litigation is correct. So what if the report was wrong, collected partial information, or was the account of a completely different person? — Even if a court holds that the procedures used are were unreasonable, damages are limited.

Most courts have held that the act does not afford injunctive relief (the Act is silent). So basically, even if the report was wrong, the court can’t force the employer to hire you. (I’m not sure if you would want want to work for someone you sued anyway). Legal damages are also limited and you probably won’t be able to get lost salary.

In the end, most judges realize that importance of professionalism and will probably find that looking at your accounts is a reasonable procedure. In the end, you have no one to blame but yourself; you allowed that information to be posted, and you should know by now people will be looking at it. Good Luck.

Consumer Reporting Act, 16 U.S.C. 1861 et seq.
Salazar v. Golden State Warriors, F.Supp.2d 1155 (N.D. Cal. 2000) (allowing the use of videotape surveillance without consent for grounds for firing).
Sarver v. Experian Information Solutions, 390 F.3d 969, 971 (7th Cir. 2004)(reasonable procedures in credit reporting).
Owner-Operator Indep. Drivers Ass’n v. USIS Commercial Servs., Inc., 537 F.3d 1184, 1193 (10th Cir. 2008)(“Industry standards” are admissible to show a process was reasonable).
Washington v. CSC Credit Svcs., 199 F. 3d 263, 268 (5th Cir.)(no injunctive relief under the Act).
16 C.F.R. Appendix, Part 600, at 516 (2009)(transactions and experiences exception explained).