The Wall Street Journal reports today, October 21, 2010, that the use of credit reports or credit histories of job applicants, "a common practice among employers– is coming under fire." Employer Credit Checks on Job Seekers Draw Scrutiny, by Sarah Murray, WSJ_Article_Link. Employers claim that the use of credit reports in hiring is necessary to "evaluate candidates and protect against fraud." One of the underlying concerns in the use of credit reports for job applicants, the Journal reports, "is that poor credit could become a barrier to landing a job." Another concern is that the use of credit reports has the potential for discriminatory impact on hiring such that the Equal Employment Opportunity Commission held a hearing on October 20, 2010, to listen to testimony from advocates on both sides of this issue. Chi Chi Wu, counsel for the National Consumer Law Center, testified that the practice "is both harmful and unfair to American workers."
Although proponents of using credit reports for employment contend that these reports "are an important screening tool for employers intend to be used sparingly," the Journal reports that a study conducted by the Society for Human Resource Management "showed 60% of employers used credit checks to that job candidates. Of those, 13% use them for all candidates."
My own comments on the issue raised in this article is that whether or not you think credit history should be used for evaluating job applicants, it is important for all of us to ensure our credit reports are accurate. Inaccurate, negative information on credit reports can impact you in so many ways, we should all take advantage of the federal law that requires national consumer reporting agencies such as Equifax, Experian and Trans Union to provide a consumer his or her own credit report upon request for free. We are all entitled to this free report from each agency once in every 12 month period. You can order your free report for the website established by order of the Federal Trade Commission act www.annualcreditreport.com.
I would also note that in the 2009-2010 legislative session for Wisconsin, a bill was proposed to prohibit discrimination in employment based on one’s credit history with limited exceptions for certain types of jobs. Unfortunately, the bill never made it to the legislative floor. Hopefully, the building reintroduced in the 2010-2011 session.
Here is what I typically look for in Background Investigation – Employment cases where an employer terminates an employee or refuses to consider or hire an applicant for employment based on a background check or credit report. The Fair Credit Reporting Act, a Federal law, has certain requirements that an employer and consumer reporting agency must satisfy if a consumer report of any type is used in the employment setting to take any type of adverse action against an employee or applicant.
- Did the employer provide a disclosure of its intent to get a background/consumer/credit report prior to doing so?
- Did the disclosure document consist only of the disclosure, with the exception of also providing for the signature on an authorization by the client (no releases, drug test waivers, indemnity provisions, etc., included with the disclosure/authorization)?
- Did the employer get the client’s written authorization to obtain a background/consumer/credit report?
- Did the employer obtain a report from a source that charged a fee or for other compensation of some form?
- If the employer took an adverse action based in whole or in part on the report, did it provide advance notice of at least 5 days of its intent to take an adverse action and, with the advance notice, provide the client with a copy of the report and FTC summary of rights under the FCRA?
- If the report included public record information, did the reporting agency send the client a letter with a copy of the report, summary of rights and the name and date of the employer to whom it sent the report?
- What damages are proximately caused by any of the above requirements?
- Whether a consumer report was used may require separate analysis depending on the circumstances. The definition of a consumer report is pretty broad though.
The standards of liability are negligence or willful. Willful includes reckless disregard of someone’s rights.
The act permits recovery of actual damages which includes any economic loss and emotional distress according to the standard in your jurisdiction. If there are no actual damages, the act still provides for a court to award statutory damages between $100-$1000 if the violation was willful. If a willful violation exists, punitive damages are also available. If you prove either a negligent or a willful violation, the act provides for recovery of attorney’s fees and litigation expenses.
On April 30, 2010, Associated Press Reporter Todd Richmond interviewed Gordon Leech regarding a story he was investigating on Background Reports sold by Wisconsin’s Criminal Information Bureau. In the story he wrote, he quoted Attorney Leech on comments made concerning the growth of the Background Check industry and problems associated with it for consumers. To see the story, follow this link: URL: http://news.moneycentral.msn.com/provider/providerarticle.aspx?feed=AP&date=20100430&id=11469456
When an employer obtains or uses a background check or background investigation or background report obtained from a source other than directly from the courthouse, that report is likely considered a consumer report for purposes of the Fair Credit Reporting Act. The party that gave the employer the report has certain obligations to ensure the accuracy of the public records it obtains – which are typically criminal histories, arrest records or conviction records. Failing to ensure the maximum possible accuracy of such reports can cost people jobs. When the party that gave the employer the report fails to ensure the maximum possible accuracy of such reports for employment purposes, the person that lost his or her job as a result may have rights against the party under the Fair Credit Reporting Act for damages and other remedies.
On April 8, 2010, Gordon Leech testified on behalf of the Individual Rights and Responsibilities Committee of the Wisconsin Bar, the Wisconsin Employment Lawyers Association and for the thousands of Wisconsin citizens that are subject to unfair and unlawful discrimination in the hiring process because they have to disclose the existence and nature of any prior convictions when applying for employment. The Senate Committee on Labor, Elections and Urban Affairs held a hearing to consider Senate Bill SB-612, which if passed into law, would prohibit employers in Wisconsin from asking about convictions prior to selecting a job applicant for interview. Unfortunately, the 2009 session of the Wisconsin legislature is coming to a close, so the prospect of this bill passing into law this session is doubtful.
Many employers are now obtaining and using background reports or investigations in the hiring process. These reports typcially contain information obtained from public records which includes criminal arrest and conviction records. If an employer obtains these reports without a proper disclosure of its intent to use such a report or does not obtain the prior written authorization of the consumer or employee to get the rep0rt, the employer may have violated that person’s rights under the Fair Credit Reporting Act, a Federal law. In Wisconsin, the law protects against arrest and conviction record discrimination in employment.
Background reports is a broad term. But when an employer obtains information about you relating to your lifestyle, mode of living, credit or other financial history, former employers, whether from a consumer reporting agency, a background checking company or some other third party, the report or investigation as it may be called is likely subject to the requirements of the Federal Fair Credit Reporting Act. To obtain or use such a report, the employer must first disclose its intent to use such a report in writing to you in a document that consists solely of this disclosure, though the document may also include a place for you to authorize the report. Secondly, the employer must get your authorization to obtain and use such a report in writing and before it obtains or uses the report. If the employer does not make a legal disclosure or obtain your prior authorization in writing, it is in violation of your consumer rights under the act. If you are not hired or not promoted, or some other adverse action, you may also have damages that are recoverable under the law.
Sixty percent of employers now conduct credit checks on job applicants. Credit checks in hiring put job seekers in a Catch-22, in which they can’t pay their bills because they lost their jobs, but now they can’t get a job because they can’t pay their bills. Congressmen Steve Cohen (D-TN) and Luis Gutierrez (D-IL) recently introduced HR 3149, the Equal Employment for All Act, to restrict the use of credit checks in employment and put job seekers back to work. The bill will soon be heard in the House Financial Services Committee and needs the support of your elected officials. You can visit www.creditcatch22.org to learn more about the bill, and you can click on “Contact Your Legislators” to talk to your representatives in government about stopping this discriminatory practice.
On March 16, 2010, the Wisconsin State Assembly, lead by Representatives Parisi, Fields, Pasch, Grigsby, Sinicki, Turner, Roys and Kessler, and cosponsored by Senator Taylor, introduced Assembly Bill 854. Assembly Bill 854 is the Assembly version of Senate Bill 612, which would make it unlawful for an employer to ask about criminal convictions before selecting an applicant for an interview. The bill was sent to the committee on Corrections and the Courts. As I said in my post on SEnate Bill 612, This amendment is similar to the law on disability discrimination in employment, which prohibits inquiries into any disabilities until after an applicant is offered a job. So the disabilities law is a bit more protective than even this proposed amendment to WFEA on conviction record discrimination. Still, the proposed bill would be a significant step towards stopping unlawful discrimination because of a conviction record. It may also help employers hire good employees that they would not otherwise have considered. To view the history of this bill, go to http://www.legis.state.wi.us/2009/data/AB854hst.html. Talk to your representatives in the state legislature about this bill if you support it. They need to know. You can find your state representative by visiting http://www.legis.wisconsin.gov/w3asp/waml/waml.aspx.
On March 11, 2010, Senator Taylor, with Representatives Parisi, Fields, Pasch, Gribsby, Sinicki, Turner, Roys and Kessler as co-sponsors, introduced Senate Bill 612 (2009-2010) to create an amendment to the Wisconsin Fair Employment Act (WFEA). The WFEA already prohibits discrimination based on an arrest or conviction record with certain exceptions when the conviction and job are substantially related, but the current version of the Act permits employers to make inquiries of applicants about convictions. Many applicants won’t know why they did not get an interview, and many times it can be due to a conviction record even though the job and the conviction are not substantially related. This bill would prohibit employers from asking applicants about a conviction record until after the employer selects an applicant for an initial interview. The proposal was sent to the Committee on Labor, Elections and Urban Affairs, and is still a long way from becoming law, if it can survive the legislative process. This amendment is similar to the law on disability discrimination in employment, which prohibits inquiries into any disabilities until after an applicant is offered a job. So the disabilities law is a bit more protective than even this proposed amendment to WFEA on conviction record discrimination. Still, the proposed bill would be a significant step towards stopping unlawful discrimination because of a conviction record. It may also help employers hire good employees that they would not otherwise have considered. To view the history of this bill, go to http://www.legis.state.wi.us/2009/data/SB612hst.html. Talk to your representatives in the state legislature about this bill if you support it. They need to know. You can find your state representative by visiting http://www.legis.wisconsin.gov/w3asp/waml/waml.aspx.