Question:

I am a recent college graduate looking for my first career job. While interviewing for a position last week, the recruiter told me he looked at my personal MySpace web page, and he asked me questions about the postings there. Some of the postings talked about my college social activities, and it made me uncomfortable. I felt it was an invasion of my privacy. Is this legal?

Answer:

The increased use of Internet social networking activities is providing employers with new sources of information about applicants and employees. A poll reported in the National Association of Colleges and Employers, Summer 2006 NACE Journal, stated that 50 percent of employers use online technology to do background research on potential employees.

The legal implications of doing background searches of sites like MySpace and Facebook are unclear. In California there are basically three separate types of background checks, and each type has different consent and disclosure requirements under state and federal law. The three types of background checks are a credit report, an investigative consumer report, and an “in house” background check of public records performed by the employer.

A search of social networking site does not fit the criteria of a credit report or public records search. However, if an employer is using an investigation agency or outside source to obtain the information, a search of these social networking Internet sites may fall within the definition of an investigative consumer report. Investigative consumer reports provide information regarding the “character, general reputation, personal characteristics, and mode of living” of the subject of the report. Investigative consumer reports are obtained by an investigative consumer reporting agency, which is defined as any person, who for monetary fees, collects, assembles, evaluates, compiles, reports, transmits, transfers or communicates information concerning individuals for the purpose of furnishing investigative consumer reports to third parties.

Investigative consumer reporting agencies typically obtain information through investigation, which may include personal interviews with neighbors, friends, business associates, and could include search of Internet sites. Both the federal Fair Credit Reporting Act and California law impose restrictions on obtaining such reports. First, the employer must i ntend to use the report for “a permissible purpose,” including evaluating a person for employment, promotion, reassignment, or retention as an employee.

You must consent in writing in order for an employer to obtain an investigative consumer report about you. The law also requires the employer to disclose information to you concerning the report, including:

  • That an investigative consumer report may be obtained by the employer;
  • That the report is being obtained for a permissible employment purpose;
  • That the report may include information on your character, general reputation, personal characteristics, and mode of living;
  • The name, address, and telephone number of the investigative consumer reporting agency; and
  • The nature and scope of the investigation requested, including a summary of your right to view the file maintained by the investigative consumer reporting agency.

Failure to comply with these rules can result in significant penalties and costs, including an award of actual damages to an individual, plus attorney’s fees and costs.

However, if an employer is conducting an Internet search without using an investigative consumer reporting agency, these restrictions probably do not apply.

A recent survey by Collegegrad.com reports that 47% of college graduates who are seeking jobs have changed, or plan to change, their MySpace or Facebook profiles to convey a more professional image. Also, in response to privacy concerns, some of these sites offer blocking options so the individual must give consent before their profile may be viewed. The bottom line is that the World Wide Web is just that, and if you do not want prospective employers to view or read certain information about you, don’t post it.
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