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Credit checks may become a thing of the past for most employers.  Seven states (California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington) have laws prohibiting employers from checking credit reports unless there is a nexus to actual job responsibilities.  However, these laws do permit credit checks on applicants whose jobs provide access to company or customer finances.  In 2011, 29 states and the District of Columbia considered similar legislation.  While there is currently no federal legislation banning the practice, the Equal Employment Opportunity Commission has opined that screening applicants based on credit may have a disparate impact on minority groups, which could lead to liability under Title VII if not sufficiently job-related.

Checking job applicants’ credit as part of the screening process is a common practice, but it is declining.  In 2009, when only two states prohibited such inquiries, a survey by the Society of Human Resource Management reported that 60 percent of employers checked the credit of at least some prospective hires.  Only a year later, that rate dropped to 47 percent.  We expect that rate will continue to fall.  Simultaneously, employers are realizing that screening everyone is generally a poor idea.  For example, in 2010, only 13 percent of employers conducted credit checks on all prospective hires.

Advocates of checking credit say it can help screen out irresponsible applicants and even future criminals.  A study by the Association of Certified Fraud Examiners found that the two most powerful indicators of potential fraud are living beyond one’s means and experiencing financial difficulties.  Even though not everyone with those indicators commits fraud, the information is valuable to companies who will suffer if they pick the bad apple.

Opponents argue a bad credit report may be a result of financial struggles that are not the employee’s fault, such as a serious illness in the family or a layoff.  Many credit reports contain errors and others may be flawed due to identity theft.  Some argue discrimination based on credit puts people in a catch-22 where they cannot pay their bills because they have no income, but they cannot find a job because of their poor credit.

Employers who check credit need to ensure they comply with applicable state laws and should consult with counsel to determine whether the exceptions for employees with financial access apply in their specific case.  Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.