Consumer Reporting Agencies for FCRA Purposes May Include More Companies Than You Realize

Two recently filed lawsuits alleging violations of the Fair Credit Reporting Act (FCRA) signal that the definition of a “consumer reporting agency” for purposes of the FCRA may encompass more companies than the traditional notion of a credit reporting company. A lawsuit was filed in California against LinkedIn, alleging that LinkedIn is a consumer reporting agency through its provision of “reference reports” for a subscription fee, which allow subscribers to search for a list of individuals who may have worked with a LinkedIn member. The lawsuit alleges that LinkedIn does not comply with the FCRA requirements, including obtaining certifications from users that the user will comply with the FCRA, providing a summary of the consumer’s rights, making reasonable effort to verify the identity of users and following reasonable procedures to ensure the maximum possible accuracy of information supplied. A lawsuit filed by the Federal Trade Commission makes similar allegations against Spokeo, a website which provides information about specific individuals including addresses, home numbers, marital status, hobbies and ethnicity. The FTC alleged that although Spokeo changed the Terms of Service of its website to state that it was not a consumer reporting agency and that users could not use the website or information provided for FCRA-covered purposes, Spokeo did not ensure that users were only using information for non-FCRA purposes. Additionally, the FTC alleged that Spokeo did not follow the FCRA requirements.

TIP: Although these lawsuits are still in the early stages, employers should be aware that information about applicants or employees gathered through social media or websites which provide information about individuals for a fee may be covered under the FCRA. Employers should consult with counsel before using such websites to make employment decisions.