Following up on a topic discussed recently in this space, a class action filed last month against LinkedIn represents just the latest development in the burgeoning battle over defining the permissible and impermissible uses of big data in the employment arena.
Last month, a class action lawsuit in federal court in California against LinkedIn, alleging that the company violated the Fair Credit Reporting Act (“FCRA”). The suit asserts that LinkedIn is selling information about its users’ employment history to potential employers without their consent.
The FCRA contains strictures surrounding the use of consumer information in the employment, credit and insurance contexts. From the employment perspective, among other provisions, the FRCA contains protections for consumers and job seekers surrounding the use of information about them in obtaining credit and employment opportunities. These protections include requirements that employers obtain consent from applicants before requesting consumer reports about them, notices to applicants before employers take adverse actions based on the information reports and provides applicants with the ability to contest information contained in these reports with the appropriate reporting agency.
The allegations in the complaint against LinkedIn echo those mentioned in my previous post concerning the FTC’s June 12, 2012 fine of $800,000 against Spokeo, Inc. for violation of the FCRA by selling profiles on millions of consumers without verifying that the information that it sold would be used for legally permissible purposes. The outcome of the suit against LinkedIn will likely turn on the question of whether LinkedIn will qualify as a Consumer Reporting Agency for the purposes of the FCRA.
Though we are still in the early days of widespread use of big data in employment (and related litigation), the FCRA has so far emerged as a front-runner topic for big data litigation.