Occasionally, we receive inquiries from organizations asking about a pre-vetting process and whether or not it’s a compliant practice.
Typically, the details of this process include utilizing a third party (a background screening company) to conduct social media searches on individuals before they formally apply for a position. While there is no problem conducting such a search, we sometimes receive the follow-up question, “Is there any way to do it without informing the individual or asking for handles?”
To that, the answer is a resounding no.
Now, there is no reason to suspect ill will on the part of the inquiring organization; it’s simply an opportunity for education. We understand that there is a tremendous amount of nuance in Fair Credit Reporting law, and we are here to meet confusion with clarity.
But to understand why this is not a compliant practice, we have to return to some basic questions:
What is the FCRA?
Here is a formal definition of the FCRA as found on the FTC website:
The Act (Title VI of the Consumer Credit Protection Act) protects information collected by consumer reporting agencies such as credit bureaus, medical information companies, and tenant screening services. Information in a consumer report cannot be provided to anyone who does not have a purpose specified in the Act. Companies that provide information to consumer reporting agencies also have specific legal obligations, including the duty to investigate disputed information.
Why was the FCRA passed?
The FCRA was passed to protect consumers and promote the privacy, accuracy, and fairness of their personal information.
Without the FCRA, consumer reporting agencies (CRA) could report misinformation about an individual with no consequence or legal action. Any consumer report, regardless of its depth or detail, is protected under the FCRA.
What is a consumer report?
An official consumer report:
- Is provided by a consumer reporting agency (i.e., credit bureau, screening company, etc.)
- Is any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.
- Is most often used to determine credit or job worthiness.
An individual must always consent to the creation of a consumer report in their name.
Who does the FCRA regulate?
The FCRA regulates both the CRAs and the requesting organization.
For example, in the case of employment screening, both the background check company and the employer have compliance responsibilities under the FCRA.
If an employer elects to utilize a CRA to gather information about their candidates, it’s the employer’s responsibility to obtain consent. That being said, many CRAs have processes in place to manage this process on behalf of employers. You can learn more about the specifics by reading the articles below.
Putting It All Together
Here are some important facts that help clarify any confusion regarding a third party conducting social media searches without consent:
- Any formal report created by a CRA and reported to a second party is considered a consumer report. This includes social media reports regardless of whether or not some of the information is publicly available.
- The FCRA was enacted to protect consumers and allow them to challenge and dispute erroneous or misleading information. Because of this, they need to consent to and be duly informed about each consumer report created in their name.
- Failure to obtain consent is a breach of the FCRA on both the part of the CRA and the employer.
One of the primary aims of the FCRA is to give consumers influence over their own information and reputation. Consent is a major part of this.
Failure to comply with the FCRA can lead to serious consequences, which is why it’s always a good idea to stay as far away from the line as possible.
When it comes to any consumer report (including information that is publicly accessible), consent will always be required.
If you have additional questions, visit us online.