Myspace Isn't Your Space: Expanding the Fair Credit Reporting Act to Ensure Accountability and Fairness in Employer Searches of Online Social Networking Services

Abstract

The advent and popularity of online social networking has changed the way Americans socialize. Employers have begun to tap into these online communities as a simple and inexpensive way to perform background checks on candidates. However, a number of problems arise when employers base adverse employment decisions upon information obtained through these online searches. Three basic problems or issues accompany searches of online profiles for employment decisions: (1) inaccurate, irrelevant, or false information leads to unfair employment decisions; (2) lack of accountability and disclosure tempts employers to make illegal employment decisions; and (3) employer searches of an employee’s online social life violate an employee’s legitimate expectation of privacy.Because searches of online social networking services, such as “MySpace” and “The Facebook,” only stand to become more prevalent among employers, the law must expand to ensure adequate protection to users of these websites from unfair, illegal or arbitrary employment decisions. Employers also stand to gain from such an expansion of legal protections because they will be accountable to make good employment decisions. The original purposes of the Fair Credit Report Act (“FCRA”) permit – and demand – its expansion to cover the potential problems for candidates and employees caused when employers search for a candidate or employee’s online social networking profiles. This solution effectively strikes an agreeable balance between an employer’s right to know about candidates for employment and its employees and an employee’s or candidate’s right to privacy and fair employment decision making.