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Question: Can an employer consider credit history information during the applicant screening process?

Response & Analysis:

It depends. Under federal law and in most states, employers are permitted to consider credit report information when making employment decisions. However, several states and some localities have recently begun to prohibit employers from considering credit history information when making employment decisions—either altogether or until later in the hiring process. The movement stems from the same premise driving the national “ban the box” movement—that the consideration of credit history information, like criminal history information, has a disproportionate impact on minority and low-income job applicants.

To date, 11 states have passed laws restricting employers’ ability to consider credit information for employment purposes. These states are: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington. Some cities and localities are also passing their own restrictions, including Chicago, IL, Madison, WI and most recently New York City.

Despite the restrictions passed in the aforementioned states and localities, almost every one of these laws provides an exception for when consideration of credit history would be job-related. Several laws provide exceptions for positions in a bank or financial institution, or for positions in which the employee will have regular access to cash or other fiduciary responsibilities. For example, Vermont exempts financial institutions and credit unions, as well as any position that involves a financial fiduciary responsibility to the employer or a client of the employer, including the authority to issue payments, collect debts, transfer money or enter into contracts. Similarly, New York City provides an exception for positions with signatory authority over third-party funds or assets valued at $10,000 or more, or the authority to enter into financial agreements valued at $10,000 or more. Most laws also permit employers to consider credit history information when it is required by law or by the rules of a self-regulatory organization.

For example, in Delaware, a public employer may inquire into or consider an applicant’s credit history after it has determined that the applicant is otherwise qualified and a conditional offer of employment has been extended. In Maryland, an employer may consider an applicant’s credit history information if the applicant has been given an offer of employment and the employer has a bona fide purpose for using the information that is substantially job-related and disclosed to the applicant. However, in Colorado, an employer is not permitted to use consumer credit information for employment purposes at any time unless the information is substantially related to the employee’s current or potential job.

There have also been efforts on the federal level to restrict employers’ ability to consider an applicant’s credit history. If passed, the proposed “Equal Employment for All Act” would amend the Fair Credit Reporting Act (FCRA) to prohibit the use of consumer credit checks to make adverse employment decisions against prospective and current employees (with exceptions for certain positions). While this bill has not yet been signed into law, it is a high-priority item for several lawmakers and therefore should be watched closely by employers.

From a regulatory standpoint, the Equal Employment Opportunity Commission (EEOC) has expressed a belief that an employer’s broad reliance on credit histories in making employment decisions could disproportionately exclude minority groups. The EEOC has recently brought actions alleging that an employer’s overly broad use of credit histories to screen prospective employees resulted in a “disparate impact” on minority job applicants.

Even if an employer determines that it is permitted to consider a credit report under both federal and state law, it will continue to be subject to the requirements of the FCRA when a credit report is obtained from a consumer reporting agency. Further, the laws in these various jurisdictions differ, making it difficult for employers who operate in multiple jurisdictions to implement a uniform policy that applies across the board. Thus, employers would be well-advised to review their employment screening policies to determine whether these recent enactments will impact their existing procedures and to otherwise ensure compliance with all applicable laws and regulations.

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