Background Check Co. Hit With FCRA Class Action, Law 360 (Feb. 5, 2016), http://www.law360.com/articles/755625/background-check-co-hit-with-fcra-class-action.
By:Kelly Knaub
Employers use information all the time to draw conclusions about potential candidates employability and fit for job openings. Employers look to indicators such as education (level, major, university), past employment (companies, positions, responsibilities), community involvement, personality traits as gleaned through interviews and conversations with listed references, writing skills judged from cover letters, among others. These have become expected, despite the fact that these also do not have perfect correlations to job performance or job satisfaction and can also be construed as private. So why is other information – credit, health[1], etc. – different? Is the difference that we have some degree of control over what we put on our resumes, in our cover letters, and how we perform in an interview?[2]
If it is about control, is that necessarily a good thing – i.e., is it a good thing to allow people to control and thereby manipulate what they are sharing and presenting publicly, to perhaps hide facts that could reveal misfit for a job? Does that result in the best situation for the employer or the employee, or does it merely put off the time at which they learn about the misfit and/or dissatisfaction? What does control mean in the context of the lawsuit at hand? If the employer wants the information and a job applicant declines to authorize the data company to disseminate their personal information, can the employer draw negative inferences and decline to move that person forward in the application process?
On the flip side, while people are concerned about privacy and the potential adverse effects, maybe this data use has potential benefits for the job applicant – maybe as potential job candidates, we have delusions about what jobs we think we are qualified for, think we will be good at, think we will most enjoy; but perhaps this data could tell another story and proactively help us find jobs for which we are better suited, positions in which we will thrive and find more enjoyment and fulfillment. If we want to increase utility through efficient job performance and job satisfaction, then perhaps aggregating more data can help us achieve those end goals.
The problem then becomes where to draw the line. How do we, as a society, decide what factors to use? Who gets to be involved in this conversation and to what end? Individuals will have different opinions and will naturally want to include information that favors them and exclude information that disfavors them. How do we ensure that historic data does not dictate future outcomes for people?[3] How do we decide when it is appropriate to share information?[4] How do we protect those who decline to authorize these background checks? The decision in this pending class action will affect the timing, content and angle of these ongoing conversations.
[1] Rachel Emma Silverman, Bosses Tap Outside Firms to Predict Which Workers Might Get Sick, Wall St. J. (Feb. 17, 2016), http://www.wsj.com/articles/bosses-harness-big-data-to-predict-which-workers-might-get-sick-1455664940 (explaining employers attempt to access detailed information about employee’s health conditions (e.g., diabetes, cancer, heart conditions) to encourage “employees to improve their own health as a way to cut corporate health-care bills.”); see also Laura June, Your Job Can Now Predict When You’ll Have a Kid, N.Y. Mag, (Feb. 17, 2016), http://nymag.com/thecut/2016/02/your-boss-might-get-alerted-if-you-quit-the-pill.html (expressing alarm about using data on women who have stopped filling their birth control prescriptions to determine likelihood of impending pregnancy).
[2] Kelly Knaub, Background Check Co. Hit With FCRA Class Action, Law 360 (Feb. 5, 2016), http://www.law360.com/articles/755625/background-check-co-hit-with-fcra-class-action (narrowing in on control in explaining that the plaintiff “points to sections 1681b(b)(1) and (2) of the FCRA, which he says together protect the right of privacy of consumers by permitting them to control the dissemination of their personal information in consumer reports for employment purposes.”).
[3] E.g., if a certain zip code is historically associated with poor job performance, how do we ensure we are not predestining people to certain outcomes, precluding them from opportunities even though the individual may be an outlier/the conclusions from the data is not applicable to him/her?
[4] E.g., people may want to keep pregnancy private for a variety of reasons (e.g., risks that diminish drastically after the first trimester, want to tell friends and family before employers, fear they will be discriminated against when it comes to promotions), but at a certain point, the woman’s body will start to show the pregnancy, and to that extent she does not have control anymore anyway.