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  1. #1
    Affiliate Network Rep
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    New Agreement
    Hi all,

    First let me apologize for not posting on the boards for a few days but I have been trying to see what I can do with regards to the legal language. And while I have to be honest and say that how some of you interpreted our agreement versus the reality was far overblown, I won’t argue with the views that were taken. In the end if many of you misinterpreted our language, then others may as well. With that in mind I've gone back and reviewed the language in our affiliate membership agreement as well as our new registration process. As I've stated before, the verification process will only be used for one purpose; that is, to verify registration information, not to check credit.

    With that said, I really do appreciate the views and concerns that have been expressed on these boards, even if at times it seems like I am fighting to get our perspective across. Over the last few days, I have been wrangling with our lawyers, which believe me is not an easy thing to do, and have gotten them to clarify how the verification procedure will work. Among other things, we are making it clear that we will not make any credit inquiries about any person during the registration process or otherwise unless we ask for your authorization beforehand. The so-called “credit check” language in Section 1.2 (“Verification”) will be changed to the following:

    “Please note that the verification of Your registration information, specifically, your name, address and Tax identification number, against a third party database may be considered under certain laws to constitute a "credit check.” Notwithstanding that, your participation in the LinkShare Network as a Network Affiliate does not depend on Your credit worthiness or financial stability. LinkShare is not making as part of the registration process any type of inquiry to any third party regarding any individual’s credit history and personal financial information and will not otherwise do so without first obtaining such individual’s express prior authorization to do so.”

    I anticipate that there will be those of you who will look at the language and say, ‘But it says you are checking my name, address and tax ID, so you are still doing a credit check.’ Let me be clear on exactly what is happening: when you complete the registration pages and hit the submit button, we will be checking the name, address and/or tax ID information, among other information, on a real time, automated basis against various databases. Some of these databases may be maintained by third parties. No information whatsoever is being retrieved in any form from these third party databases; they are simply telling us whether or not the information is verifiable against the information they maintain. No credit reports or credit scores are being retrieved or provided back.

    The good new is our hard work over that past several days has paid off. I am happy to report that we were able to resolve this issue in enough time to meet our internal technical deadline. In other words, we will be launching the revised affiliate membership agreement today. Obviously, as soon as the new terms are posted, they will apply to all affiliates irrespective of whether you may have joined under the current terms.

    All our affiliates are important to us, and so at the end of the day if we can do something to help the network be an easier place to grow your business I hope everyone knows we will do our best to get there. I appreciate your candor and feedback and I am glad that we could work constructively together to clarify this issue. While we know that you can’t please everyone, this change should address the worries listed here. Whether it’s project Athena, Consolidated Payment or Synergy Analytics, I really would like to thank you for helping us to understand your perspective and I look forward to working with you in the future to continue to improve our network.

    Best regards,
    Stephen

  2. #2
    ABW Ambassador
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    For those that already agreed to the one before this one, can they get the new agreement. And i had a question about consolidating accounts. I tried it the day you posted how and it still hasn't happened. Thanks.

  3. #3
    notary sojac Herb Ô¿Ô¬'s Avatar
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    Thank you for providing a new agreement that clarifies the "credit check" issue. We don't have to be lawyers to know that contract wording has to be read as a worst-case situation for our personal protection.

  4. #4
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Thumbs up
    This sure takes the "drac" out of Draconian and brings it into the rhelm of legitimizing a commercial contractual arrangement. Hope Stephen whacks the heck out of the pseudo CPA networks hiding their hidden partnerships with the "tricks for cookie setting clicks" crowd. Amazing how an enity like AdOn or AdRoar http://frazoo.mygeek.com/adon_network.jsp and http://www.google.com/search?sourcei...LC:en&q=AdRoar should immediately qualify for a PhaseII verification test.
    Webmaster's... Mike and Charlie

    "What have you done today to put real value into a referral click...from a shoppers viewpoint!"

  5. #5
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    That clarification is good and hopefully when the whole agreement is up it will as a whole make sense. Stephen, before anyone signs any agreement, they should take it to the extremes that are allowed under the agreement, because that is what they are agreeing to...

    Any hope on a revised privacy policy?

    Chet

  6. #6
    Defender of Truth, Justice and the Affiliate Way
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    For those that already agreed to the one before this one, can they get the new agreement.
    Obviously, as soon as the new terms are posted, they will apply to all affiliates irrespective of whether you may have joined under the current terms.
    Trust is that what you were asking by "get"? Or did you mean how you could actually access a copy of the new agreement?

  7. #7
    ABW Ambassador
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    It means i need to eat something before i get online

    Thanks for pointing that out, i must have skipped over it.

  8. #8
    Not Verif-Lidated infoTim's Avatar
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    Stephen,

    Thanks for taking these positive steps. I have been fretting quite a bit about this issue, although not as publicly as some.

    - Tim
    Tim
    consultant by day, affiliate by night

  9. #9
    Super Sh!t Stirrer SSanf's Avatar
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    OK! Then, we CAN have a dialogue with LS after all. That is much, much better.

    Your lawyer should appreciate the views and concerns, too. I am sure he/she wouldn't have signed the original in a million years. If they would have, get a new lawyer! We did not misinterpreted your language. Your lawyer miswrote the contract. Nuff said.
    Comments are opinion unless otherwise noted. Remember, pillage first. Then burn. Half of all people in the world have IQs under 100. You best learn to trust ol' SSanf!

  10. #10
    Super Sh!t Stirrer SSanf's Avatar
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    I want to add that LS is looking better to me now that they have listened to us on a couple of very important issues, consolidated payments and this horrid contract fiasco. If they can actually use the information to flush out some of the no-good-nics, that will even be better. Still a ways to go, but looking a lot better, for sure.
    Comments are opinion unless otherwise noted. Remember, pillage first. Then burn. Half of all people in the world have IQs under 100. You best learn to trust ol' SSanf!

  11. #11
    15 years and counting
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    It sounds much better. Do we still have to register before the end of the month?

  12. #12
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    Spin?

    I have been wrangling with our lawyers
    How do you wrangle with someone that works for you? Your intentions and TOS are interpreted by your lawyer but they all start with your mandate.

    As I've stated before, the verification process will only be used for one purpose; that is, to verify registration information, not to check credit.
    That would be fine if the new wording is made to represent EXACTLY that without any loopholes. The original wording (still posted on the site) states that you will do a credit check and it is hard to believe that you meant anything else:

    1.2 Verification. LinkShare has the right to confirm or otherwise verify, in its sole determination, the truth and accuracy of any registration information at any time. Such inquiries may include a credit check of Your business including its proprietor, principal owners or officers. If requested by LinkShare, You shall provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial information as LinkShare may consider necessary to perform initial or periodic reviews of Your financial stability and business practices.
    I would have more faith in this verification process if it was done by a outside third party that had no affiliation to Linkshare.
    we will be checking the name, address and/or tax ID information, among other information, on a real time, automated basis against various databases.
    What various databases and companies will you be using to verify the information? Post their names and contact information so we can make a fully informed decision on whether or not we wish to continue to do business with LinkShare.

    There is nothing preventing Linkshare from changing the TOS again to suit their original intentions. The only reason they seem to ever respond to anything affiliates have to say here is when there is enough upheaval that it affects their network.

    This response from Messer may be a clue to us all that we really do make a difference. They have to have seen a drop off in traffic from this and are probably getting heat from merchants. Now would be a good time to write to the merchants you represent and let them know what is going on and how Linkshare actually treats you the affiliate. Of course the double edge sword is raised again and you would probably have to contact them anonymously.

    Do I have doubts about Linkshare? Oh yea. Will I continue to be an affiliate with their system? Probably not. But I still have to challenge them and their suspect business practices because they set the pace for a lot of merchants that in many instances have no clue what is actually going on.

  13. #13
    Super Sh!t Stirrer SSanf's Avatar
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    He says it "will be changed". I take it that it hasn't been changed, yet. I hope we are told when it has been changed.
    Comments are opinion unless otherwise noted. Remember, pillage first. Then burn. Half of all people in the world have IQs under 100. You best learn to trust ol' SSanf!

  14. #14
    Outsourced Program Manager Chris -  AMWSO's Avatar
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    Thank you Stephen.

    Cheers

    Chris
    Affiliate Marketing by AMWSO. Skype - chrissanderson ::: TEL 1-720-336-1784 ::: www.amwso.net
    Join our affiliate programs :Vaper Empire, Iolo, Art of Tea, or See ALL our Programs here

  15. #15
    Content $ Queen Ebudae's Avatar
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    Thank you for listening and changing the contract!!!!

    Ebudae


  16. #16
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    It does look better than it was, but let me get people's perspective" on this. Let's think it through a little further.

    Under the revised terms, LS can still ASK to check your credit report at a future time. Let's assume that they would only do this to someone whom they suspected of being a shady operator. Then you have the choice of saying yes or no. I am guessing that if you say no, they can boot you from the network.

    But if you are not a shady operation, shouldn't you have some kind of recourse to prove that to LS without having to agree to a credit check? Does everyone here get my point? There may be situations where honest affiliates are forced to give their permission to have LS access their credit report with the threat of getting kicked from the network. That doesn't seem right.

    It would be nice to know that if my name, address, and tax ID # all match up after the initial check, then I will not be asked to permit a credit check in the future. If they tell me that they need more verification in the future, they should have a plan for employing other methods than perusing my credit report.

    Anyone have any thoughts about this?

  17. #17
    Defender of Truth, Justice and the Affiliate Way
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    Just wanted to let people know (since some have been asking) that the revised TOS is live.

  18. #18
    Defender of Truth, Justice and the Affiliate Way
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    Stannis,

    INAL but the clause under discussion here seems to be saying the LS will not be collecting individual credit history or personal financial information and won't do so without prior authorization (which is rightly so).

    Any company I may have a business relationship with (or even those I don't) can ASK me for anything. What you are asking about doesn't seem directly related to the clause under discussion. I would think it would potentially fall under clauses in the TOS related to both parties rights regarding termination/disputes/etc. You may want to look at those clauses in the TOS for possible answers to your question.

    If you still aren't sure with what your rights may or may not be given all the information in the TOS, then you may want to bring the complete TOS for review by a legal professional for advisement if your concern over that possible situation warrants such.

  19. #19
    Full Member Gjenvick-Gjønvik's Avatar
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    Yes, the LS agreement is better than before. We appreciate your efforts and you can count on us to scrutinize your actions for the foreseeable future. The verification of name TID seems reasonable for due diligence on the part of LS.


    Next...:

  20. #20
    Super Sh!t Stirrer SSanf's Avatar
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    I have a question though. I have recently moved, as people often do. So, my address could come up different than what is in whatever data base. I would hope people don't get deactivated if that is a discrepency because people move frequently.
    Comments are opinion unless otherwise noted. Remember, pillage first. Then burn. Half of all people in the world have IQs under 100. You best learn to trust ol' SSanf!

  21. #21
    notary sojac Herb Ô¿Ô¬'s Avatar
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    Quote Originally Posted by SSanf
    I have a question though. I have recently moved, as people often do. So, my address could come up different than what is in whatever data base. I would hope people don't get deactivated if that is a discrepency because people move frequently.
    I think keeping current with LS should be good enough.

  22. #22
    ABW Ambassador
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    checking if name, address, tax id are matching up is fine with me.

    but it puzzles me why the credit check is even a topic. aren't credit checks done to check on creditworthiness? or one's ability to pay? what has that got to do with receiving checks from LS?

  23. #23
    Web Ho - Design B!tch ~Michelle's Avatar
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    Thank you for this improvement!
    ~Michelle
    "All I ask is a chance to prove that money can't make me happy."
    "Work to become, not to acquire." -- Confucius

  24. #24
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    Steve:

    Irregardless of what data is communicated to, and/or received from a consumer reporting agency as defined by the Fair Credit Reporting Act, the Fair Credit Reporting Act must be complied with in its entirity.

    In case you have not read the Fair Credit Reporting Act, I will post some very important definitions from said act here, as well as my thread on this issue...

    § 603. Definitions; rules of construction [15 U.S.C. § 1681a]

    (b) The term "person" means any individual, partnership, corporation, trust, estate,
    cooperative, association, government or governmental subdivision or agency, or other
    entity.

    (c) The term "consumer" means an individual.

    (d) Consumer Report
    (1) In general. The term "consumer report" means any written, oral, or other
    communication of any information by a consumer reporting agency bearing on a
    consumer's credit worthiness, credit standing, credit capacity, character, general
    reputation, personal characteristics, or mode of living which is used or expected to
    be used or collected in whole or in part for the purpose of serving as a factor in
    establishing the consumer's eligibility for
    (A) credit or insurance to be used primarily for personal, family, or household
    purposes;
    (B) employment purposes; or
    (C) any other purpose authorized under section 604 [§ 1681b].

    (f) The term "consumer reporting agency" means any person which, for monetary fees,
    dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the
    practice of assembling or evaluating consumer credit information or other information
    on consumers for the purpose of furnishing consumer reports to third parties, and
    which uses any means or facility of interstate commerce for the purpose of preparing or
    furnishing consumer reports.


    (h) The term "employment purposes" when used in connection with a consumer report
    means a report used for the purpose of evaluating a consumer for employment,
    promotion, reassignment or retention as an employee.

    (k) Adverse Action
    (1) Actions included. The term "adverse action"
    (A) has the same meaning as in section 701(d)(6) of the Equal Credit
    Opportunity Act; and
    (B) means
    (i) a denial or cancellation of, an increase in any charge for, or a reduction
    or other adverse or unfavorable change in the terms of coverage or
    amount of, any insurance, existing or applied for, in connection with the
    underwriting of insurance;
    (ii) a denial of employment or any other decision for employment purposes
    that adversely affects any current or prospective employee;

    (iii) a denial or cancellation of, an increase in any charge for, or any other
    adverse or unfavorable change in the terms of, any license or benefit
    described in section 604(a)(3)(D) [§ 1681b]; and
    (iv) an action taken or determination that is
    (I) made in connection with an application that was made by, or a
    transaction that was initiated by, any consumer, or in connection with
    a review of an account under section 604(a)(3)(F)(ii)[§ 1681b]; and
    (II) adverse to the interests of the consumer.
    (2) Applicable findings, decisions, commentary, and orders. For purposes of any
    determination of whether an action is an adverse action under paragraph (1)(A), all
    appropriate final findings, decisions, commentary, and orders issued under section
    701(d)(6) of the Equal Credit Opportunity Act by the Board of Governors of the
    Federal Reserve System or any court shall apply.

    (p) The term "consumer reporting agency that compiles and maintains files on consumers
    on a nationwide basis" means a consumer reporting agency that regularly engages in
    the practice of assembling or evaluating, and maintaining, for the purpose of furnishing
    consumer reports to third parties bearing on a consumer's credit worthiness, credit
    standing, or credit capacity, each of the following regarding consumers residing
    nationwide:
    (1) Public record information.
    (2) Credit account information from persons who furnish that information regularly
    and in the ordinary course of business.

    (w) The term "nationwide specialty consumer reporting agency" means a consumer
    reporting agency that compiles and maintains files on consumers on a nationwide basis
    relating to--
    (1) medical records or payments;
    (2) residential or tenant history;
    (3) check writing history;
    (4) employment history; or
    (5) insurance claims.
    By performing any level of an inquiry on any company which is defined as a consumer reporting agency under the Fair Credit Reporting Act, your company must comply entirely with the Fair Credit Reporting Act.

    There is no "OH, BUT THEY ONLY GIVE A YEAH, OR NAY" exception.

    When any inquiry is obtained, irregardless of what information is obtained from that inquiry, the FCRA must be complied with, or your company is violating Federal Law. Even by affirming or dening the data which your company provided them, they are providing a consumer report to your company.

    As I stated, I will direct your attention to the Federal Trade Commission to PROVE this point.

    An inquiry for the purposes of determining whether an independant contractor relationship will be began, or continued, is an inquiry for employment purposes under § 603(h), and requires all of the disclosures under the Fair Credit Reporting Act, including the revealation of the consumer reporting agency which was used in the decision.

    Since the user can not progress beyond the third page of the 'registration' process, their being prevented from continuing said 'registration' process is an adverse action for the purposes of employment as an independent contractor of LinkShare and it's merchant partners, as defined by § 603(k)(1)(B)(ii).

    Federal Trade Commission
    Allison Opinion
    02-23-98
    http://www.ftc.gov/os/statutes/fcra/allison.htm

    UNITED STATES OF AMERICA
    FEDERAL TRADE COMMISSION
    WASHINGTON, D.C. 20580

    Division of Credit Practices
    Bureau of Consumer Protection
    ~
    Ronald G. Isaac
    Attorney


    February 23, 1998

    Mr. Herman L. Allison
    Contangy, Brooks & Smith, LLC
    Suite 2400
    230 Peachtree Street, N.W.
    Atlanta, Georgia 30303-1557

    Re: Section 603(h) of the Fair Credit Reporting Act

    Dear Mr. Allison:

    This will respond to your letter inquiring whether an employer that enters into a bona fide independent contractor relationship with an individual must comply with the applicable provisions of the Fair Credit Reporting Act ("FCRA") pertaining to consumer reports obtained for employment purposes.

    You state that it is quite common for trucking operations to engage as drivers individuals who own and operate their own equipment and who themselves may hire drivers to operate their equipment. You read the FCRA to not apply to a trucking operation as it relates to such an independent contractor because you consider the independent contractor relationship to be a "business relationship" as opposed to an "employment relationship," and, you maintain, the independent contractor is not being hired "as an employee." You assert that a party who hires independent contractors should be treated like a homeowner who obtains a credit and criminal background check on an electrical contractor before hiring that individual to rewire the house, who you assert "is surely not required to comply with the provisions of the FCRA." For the reasons explained below, we view the trucking operation's hiring, or consideration for hiring, of independent drivers in the situation you describe to be for "employment purposes," as defined by Section 603(h) of the FCRA.

    Section 603(h) provides, "[t]he term 'employment purposes' when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee." The Commission staff subscribes to the view, enunciated by the United States Court of Appeals for the Fourth Circuit in Hoke v. Retail Credit Corporation,(1) that the term "employment purposes," as used in the FCRA, should be interpreted liberally to effectuate the broad remedial purpose of the Act. The court therein ruled that information furnished by a consumer reporting agency to the Texas Board of Medical Examiners, which had requested the information to aid its assessment of a physician's application for a license to practice medicine, was furnished for "employment purposes" within the meaning of the FCRA, and thus was a "consumer report" subject to the provisions of the Act. The court reasoned2)

    If we were to apply the common-law concept of employee, we would undoubtedly conclude that a physician who practiced his profession as a sole practitioner or as a member of a medical partnership was an independent contractor, and not an employee, because of the absence of control over the manner in which he afforded expert medical services. But in construing FCRA, we are cognizant of its broad remedial purposes . . . and we are not constrained to limit its applicability by the common-law concept of master and servant.

    The court opined further that the term "employment" is not limited, as you suggest, to situations in which the consumer is being evaluated "as an employee," because the ending phrase "as an employee" in the definition of "employment purposes" modifies only "retention," and not the words "employment, promotion, reassignment" preceding it.(3)

    Therefore, we conclude that a trucking operation that uses consumer reports to evaluate whether to engage individuals as drivers must comply with the applicable provisions of the FCRA pertaining to consumer reports obtained for employment purposes, including the disclosure and authorization provisions of Section 604(b), Section 606, and Section 615. If the trucking operation were not to obtain consumer reports on prospective drivers for "employment purposes," it would appear to have no permissible purpose under the FCRA for obtaining such reports, absent the drivers' written authorizations. Incidentally, a homeowner who is considering hiring an individual to perform services for the homeowner is indeed required to comply with the FCRA when obtaining a "consumer report" on that individual (which includes either the credit report or criminal background check you mentioned), and thus must abide by the applicable disclosure and authorization provisions of Section 604(b), Section 606, and Section 615 like any other employer.

    This is an informal staff opinion and is not binding on the Commission.

    Sincerely,

    Ronald G. Isaac

    1. 521 F.2d 1079, 1082 (4th Cir. 1975), cert. denied, 423 U.S. 1087 (1976).

    2. Id. at 1082 n.7.

    3. Id. at 1082.
    The Federal Trade Commission *HIGHLY* disagrees with your company's position on the "credit check" issue, and since they are the government agency in charge with compliance with the Fair Credit Reporting Act, their opinion means more then your own lay impressions, or your own company's legal council's of the laws involved. The Federal Trade Commission is saying that your company is performing an inquiry of a "consumer reporting agency" and your company has to comply with the Fair Credit Reporting Act, in its entirity. Nowhere in the law does it say that specific information needs to be provided for the information to be provided to be considered a consumer report. In fact, TransUnion lost in the Supreme Court against the Federal Trade Commission in a case where they were attempting to argue that they had an UNFETERED right under the First Amendment to sell any consumer's NAME, and ADDRESS, and other personal contact information based on credit report data; irregardless of whether or not that company intended to provide a firm offer of credit or insurance, the only situation which the Fair Credit Reporting Act provides for the provision of the NAME or ADDRESS, and other contact information without the consumer's consent.

    Do you want to attempt to argue that if the consumer's NAME and ADDRESS is defined by the United States Supreme Court to be a consumer report as defined by the Fair Credit Reporting Act, your company's attempts to verify the same through a "consumer reporting agency" is for some mysterious, and unexplainable reason does not rise to a "consumer report" as defined by the Fair Credit Reporting Act. If this is your company's position, and your company is sticking to it, I would welcome the opportunity to prove you wrong all the way to the same United States Supreme Court.

    And one of the most important of the required disclosures is the DISCLOSURE of the consumer reporting agency which was used in the event of an adverse action (even the "unable to verify" adverse action which prevents the affiliate from completing the registration process). Your company can not attempt to cloak the names and addresses of these mysterious third parties to preclude us from exercising our rights under the Fair Credit Reporting Act to verify that said consumer reporting agencies are reporting only 100% complete, accurate, and verifiable information about us, as is required by law.
    Last edited by promosoft; May 7th, 2005 at 08:28 PM. Reason: missed paraenthesis

  25. #25
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    Quote Originally Posted by waytogo
    checking if name, address, tax id are matching up is fine with me.

    but it puzzles me why the credit check is even a topic. aren't credit checks done to check on creditworthiness? or one's ability to pay? what has that got to do with receiving checks from LS?
    As you see from the above, credit checks are permissible in the case of employment, Federal Law and the case law based on it is very liberal as to defining of employment, as you can see from the letter from the Federal Trade Commission.

    Even though we are 'independent contractors', there is an employment relationship as far as the Fair Credit Reporting Act is concerned. The reason that this is (and will continue to be) an issue is that under the Fair Credit Reporting Act numerous disclosures, in a specific format approved by the Federal Trade Commission, and other regulatory agencies must be provided to consumers who have their consumer reports obtained for employment purposes.

    Linkshare is trying to do an end-run around these disclosures by attempting to claim that they are not obtaining a consumer report. Unfortunately, I have a lot more caselaw to the contrary, should this issue need to be resolved through the courts.

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