Linked In and Prospective Employers Checking with the Folks Who Know YOU!

 

LinkedIn, the popular professional connection service has a tool called “Reference Search.” A premium service, employers and recruiters are using the tool to cull their connections to see who knows job applicants in order to get background on them. So, employers are checking with references that the applicants did not list, references that may not have all good things to say about them. The service provides employers with the list of LinkedIn contacts that they have who worked at the same companies as the applicants and at the same time. Applicants are worried that employers are basing employment decisions based on the information that they receive, information that may not be true or verified or verifiable. And, the applicants do not always know that the employer is checking with other sources and which ones and do not have the opportunity to respond to negative information.

As a result, Sweet v. LinkedIn, is a class-action suit filed in Northern California, that challenges this employer tool. Interestingly, the basis for the suit is the Fair Credit Reporting Act (FCRA). You can read the complaint here. The issue is not without precedent. In 2012, the Federal Trade Commission filed a complaint against Spokeo, a company that sold background data to employers and recruiters. Spokeo settled the complaint for $800,000 and now has a disclaimer on its site, “Utilizing Spokeo’s platform for purposes of employee screening is strictly prohibited.” Natasha Singer, “Funny, They Don’t Look Like My References,” New York Times, November 10, 2014, p. BU4.

There are many legal issues coming to a head in the LinkedIn case. The obvious one is whether the Fair Credit Reporting Act applies. At the time the act was passed, the Internet did not exist so it is a tall order to determine whether Congress intended to cover services such as LinkedIn. The FCRA was passed to make companies that gather information about individuals for purposes of employment or credit screening accountable for the information they have. Individuals are given the right of correction and there are penalties if the companies fail to make corrections. The FTC’s position is that the FCRA applies to Internet services, but it has not taken a position specifically on the LinkedIn case. LinkedIn has a great deal of information posted about individuals, but it cannot control what those connections offer to companies that might inquire about job applicants.

Some lawyers believe the FCRA does not apply because LinkedIn is not providing a services of pulling together information on individuals and then offering it for sale. LinkedIn is a voluntary site that allows individuals to post information voluntarily. When you agree to be a part of LinkedIn, you agree to allow the company the right to “use, copy, modify, distribute, publish, and process information and content.” In other words, if you post it, it is there for LinkedIn and others to use.

Other lawyers argue however, that the consent those who sign up give is for information sharing, not for uses beyond connections, and certainly not for use by prospective employers as a means of screening applicants.

The class-action suit offers yet another opportunity for clarification of the law when it comes to the technology and innovations of the Internet.

DISCUSSION STARTERS

  1. What is the FTC’s position on information about consumers on the Internet?

  2. Make the pro and con arguments for application of the FCRA to LinkedIn.