Note: It Can Do More Than Protect Your Credit Score: Regulating Social Media

By Nathan J. Ebnet. Full text here.

A growing number of employers are factoring job candidates’ social media profiles into their hiring decisions. Employers value social media pre-employment screening because it provides access to previously unobtainable applicant information. However, job candidates are wary of social media pre-employment screening due to concerns over the trustworthiness and authenticity of information obtained from the Internet. It should come as no surprise, then, that there is sharp disagreement over the legality of social media pre-employment screening. Early efforts to regulate social media pre-employment screening focused on Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Fourth Amendment. These efforts were largely unsatisfactory because they failed to ensure accuracy and relevancy during the social media pre-employment screening process.

Thanks in large part to the emergence of third parties that offer to conduct social media pre-employment screening for employers, a new regulatory solution responsive to applicants’ privacy interests is now available. The Note recommends that the Fair Credit Reporting Act should be amended to require all employers interested in using social media to evaluate job candidates to use third-party screening companies. By doing so, social media pre-employment screening will be subject to the fairness constraints of the Fair Credit Reporting Act, including its notice and consent requirements. Finally, the Note argues that the Federal Trade Commission and the Equal Employment Opportunity Commission should be the primary parties responsible for monitoring employers’ social media pre-employment screening and its compliance with the Fair Credit Reporting Act.