Employers may have one less employment screening tool at their disposal if a federal bill banning credit checks during most employment background checks becomes law.
Recent legislative efforts throughout the country have sought to ban credit reports from the employment screening process. Three states — Washington, Hawaii, and Oregon — currently have restrictions on an employer’s use of the credit history of an applicant or employee in making employment-related decisions. There is even pending legislation at the federal level — HR 3149, which is currently in committee — to limit credit checks.
Now Senator Dianne Feinstein (D-CA) has introduced a senate bill — SA 3795 — as part of an amendment to the S.3217 – Restoring American Financial Stability Act of 2010 bill, an effort by lawmakers to improve accountability and transparency in the financial system and to protect consumers from abusive financial services practices.
Much like the pending HR 3149, SA 3795 would restrict employers from using aconsumer’s creditworthiness, credit standing, or credit capacity, in making any employment decision or for the basis of taking any adverse action even if the employer gets authorization for the background check report from the consumer. The exceptions to this prohibition on credit checks during employment screening would be for:
- National security or FDIC clearance;
- Employment with state or local government agency which requires the use of this information;
- Employment in a management position with access to customer funds at a financial institution; or
- As otherwise required by law.
Because Senator Feinstein’s amendment to the Financial Services reform bill would effectively prohibit the use of credit history in employment background checks except in extremely limited circumstances — mostly government employment — trade associations representing millions of employers are planning to write members of the U.S. Senate to express opposition to banning the use of credit checks for employment purposes.
Employers argue that credit checks during employment screening are done responsibly, and are not barriers to employment. They may check credit history during background checks to help them determine whether a prospective employee is a possible risk to the financial health of a business or to its customers. Prohibiting credit checks in screening makes employers, other employees, and customers vulnerable to fraud and identity theft.
Also, employment credit checks are not as common as most people think, according to a recent survey from the Society for Human Resource Management (SHRM) that found only 13% of organizations conducted credit checks on all job candidates while 40% did not conduct any credit checks. Of the 47% of organizations that did perform credit checks on selected job candidates, most were for executive positions, positions with financial responsibility, or for positions with access to confidential or proprietary information.
Unfortunately, personal financial health can be an indictor of potential employee fraud. The Association of Certified Fraud Examiners (ACFE) reviewed occupational fraud between 2006 and 2008, and found that the top two “red flag” warnings exhibited by perpetrators of fraud leading to the crime were instances of living beyond their financial means (39% of cases) or experiencing financial difficulties (34% of cases).
While it is wrong to say all financial difficulties lead to fraud, some employers believe it is also wrong for Congress to undercut fraud prevention by outlawing the use of credit report information that may show a correlation between past behavior and future fraud. Credit checks of potential employees protect companies — particularly small businesses — from fraud. According to ACFE, the median loss suffered by organizations with fewer than 100 employees was $190,000 per incident, higher than median losses in large organizations. Overall, employee theft accounted for over $15 billion in losses annually, with companies losing a median of 5% of their annual revenue to employee fraud.
Consumers have significant protections when employers use credit reports during background checks as part of their hiring process, as the use of consumer reports in employment situations is tightly regulated:
- Prior to requesting a consumer credit report, an employer must provide to the prospective employee a written notice stating the source of the information and how it will be used.
- The employer must also provide a copy of the consumer credit report to the consumer upon request, and prior to taking an adverse action.
- If an adverse employment action is taken against a prospective employee due to the information contained in a consumer credit report, the user must provide the name and contact information for the reporting agency to the consumer and explain the reasons for the action.
- Under the FCRA, any person who willfully fails to comply is liable to that consumer in an amount equal to the sum of (1) (A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or (2) such amount of punitive damages as the court may allow; and (3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney’s fees as determined by the court.
- Credit scores are not provided to employers for employment decisions.