LinkedIn References Are Not Subject to FCRA Requirements

Yarelyn Mena

Today, job applications are often completed on the Internet and, sometimes, on social media sites, such as LinkedIn.  LinkedIn allows users to apply to multiple jobs with a LinkedIn account, making an applicant’s information readily available to employers. The public access to potential employee information may facilitate an applicant’s job search; however, such access can also be detrimental. For example, Tracee Sweet lost an employment opportunity based on information procured by a prospective employer through LinkedIn.

Ms. Sweet applied to work for a company in the hospitality industry, through LinkedIn. After a seemingly successful interview, the General Manager notified Ms. Sweet that the company would offer her a position. Shortly there after, the company rescinded its job offer. Confused as to why she was rejected after the company’s initial excitement with her, she reached out to the General Manager, who informed her that the company checked, and was not pleased with, her references. The company used LinkedIn’s “Reference Search” function, which allows users who pay a subscription fee to find people and companies, for which applicants previously may have worked.

Unsatisfied with the company’s decision, Ms. Sweet, on behalf of herself and others similarly situated, filed a class action suit against LinkedIn in the Northern District Court of California, alleging that LinkedIn’s Reference Search function violated their rights under the Fair Credit Reporting Act (“FCRA”). The FCRA protects consumers from the transmittal of incorrect information in a “consumer report.” In this context, a consumer report is any form of communication by a “consumer reporting agency” used to detail a consumer’s credit standing, credit capacity, character, overall reputation, or mode of living which is used for the purpose of serving as a factor in establishing the subject of the consumer report’s eligibility for employment.

The court granted LinkedIn’s motion to dismiss the case because the court was not convinced that LinkedIn’s Reference Search function is a consumer report under FCRA. The court emphasized that each of LinkedIn’s users provide information about him or herself, including past employers and employment dates, to LinkedIn’s network and, thereby, agree to the online publication of that information. The court further stated that LinkedIn is not a consumer reporting agency under the FCRA by virtue of having transmitted, with the consent of the user, an applicant’s information to a third party.

As more employers begin to use social media to evaluate employment applicants, applicants must be cautious of their online presence. Although avoiding social media altogether is increasingly difficult since many companies refer to social media when making hiring decisions, if you have a professional social media account, make sure it is up-to-date and does not contain information that will negatively affect your job search. The applicant is responsible for maintaining a positive media presence, not the company that hosts the information.

If you believe your employer wrongfully discriminated against you through use of a consumer report, please contact The Harman Firm, LLP.