In addition to checking professional references, conducting interviews, and running criminal background checks, many business owners also conduct credit checks on potential new hires to assess their suitability for the job.
Such screening is obviously important for hiring high-level positions or those directly involved with handling money and/or making fiduciary decisions. But starting a couple decades ago, credit checks became fairly commonplace for even menial jobs—maintenance person and warehouse staff—that entail no fiscal duties whatsoever.
More recently, however, some companies have started reducing their use of pre-employment credit checks. This may be due to increased scrutiny from state legislators or the fact that so many Americans were negatively impacted by the recession that even those with otherwise excellent credit now have some blights on their record.
Whether or not to run credit checks on potential hires is still something that every business owner must decide for themselves based on the need to protect their company, balanced with the cost of such checks and the potential liability they present if not done correctly. For instance, Whole Foods paid out more than $800,000 in 2015 to settle a class-action lawsuit alleging the company didn’t properly disclose it was running credit checks on potential employees.
To help business owners weigh the risk and rewards, here are some steps companies should take before running pre-employment credit checks.
Determine What the Laws Are in Your State
Even though the Fair Credit Reporting Act (FCRA) makes it legal on a federal level for employers to use pre-employment credit checks, several states have passed legislation that is much more strict and overrides these federal allowances.
Currently, 11 states have enacted laws that restrict how and when employers may use credit checks to make hiring decisions—and two of those states (Hawaii and Washington) bar employers from pulling such reports at all. Major metropolitan areas like New York City and Chicago also regulate employment credit checks.
According to the National Conference of State Legislatures (NCSL), some 20 states are on considering passing similar laws, so make sure you are familiar with your state’s policies. Much of what you need to know can be found by checking with your state’s department of labor.
In California, an employer may not consider, acquire, or consider a person’s credit report in making job decisions except for applications for:
- • managerial positions;
- • Positions in the state Department of Justice, as a sworn peace officer or other law enforcement position;
- • Positions for which the information contained in the report is required by law to be disclosed or obtained.
- • Positions that involves regular access to sensitive personal information, for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment
- • A position in which the person is, or would be a named signatory on the bank or credit card account of the employer, authorized to transfer money on behalf of the employer or authorized to enter into financial contracts on behalf of the employer
- • positions that involve access to an employer’s trade secrets or confidential or proprietary information; and
- • positions that involve regular access to $10,000 or more during an ordinary workday.
Follow Rules Set Out By FCRA
If your state allows such credit checks, you must still abide by FCRA’s guidelines, which require employers to take three actions:
- Obtain an applicant’s consent before pulling a credit report.
- Issue applicants advance notice—and a copy of the credit report—if the company is considering rejecting them on the basis of their credit.
- Provide applicants with an adverse action notice if the company decides not to hire them because of the credit check.
Keep in mind, if you request a credit report for a potential hire, you won’t get the same report sent to lenders. Instead, you’ll get a report designed for employers, offering a brief summary of the candidate’s credit history, but no credit score. Included in the report are current and past debts, bankruptcies, late payments, and the candidate’s debt-to-income ratio.
1) Obtain consent for credit checks: Before running a credit check on a potential hire, you must notify them and get their written permission to do so. The credit check notice and authorization should be provided in a separate document that does not hide the terms inside a bunch of other information, such as within a standard employment application.
2) Provide warning of potential adverse action: If you are thinking of not hiring the applicant over their credit, FCRA requires you give them a written notice stating as much. Additionally, you must give them a copy of the credit report as well as a copy of the Federal Trade Commission’s “A Summary of Your Rights Under the FCRA,” which explains how they can challenge any incorrect information in their history.
Although not required by law, it’s a good idea to use this opportunity to meet with the applicant and allow them to explain and/or correct their information. This make sense given that consumer groups have found up to one-third of all credit reports contain errors. Moreover, recent studies show that more than half of all unpaid consumer debt is for medical procedures, which are far less likely to be caused by a candidate’s reckless spending.
3) Issue adverse action notice: If you ultimately decide not to hire an applicant based on their credit history, you must give them another document known as an “adverse action notice.” This informs them of the reason for not being hired and provides additional information on their consumer rights, including the right to dispute the report’s accuracy.
Use Credit Checks Judiciously
In addition to the legal liability, pre-employment credit check can also be somewhat costly and time-consuming to conduct properly. To this end, you should think carefully about whom you choose to run them on. They can have value for financially sensitive positions, but probably not for everyone who wants to work for you.
If you run such credit checks, you should be consistent by running them on all applicants for a specific position—or none at all. Such checks also work best when conducted in the later stages of the hiring process, so you’re not wasting time and money pulling them on candidates who won’t make the final cut.
If you plan to run pre-employment credit checks, consult with us as your Family Business Lawyer® to ensure you are complying with your particular state’s laws and the FCRA. Credit screenings can be a useful part of your hiring process, and we will carefully review yours to be certain it is done in the most efficient and secure way possible.
This article is a service of Pantea I. Fozouni, Family Business Lawyer®. We offer a complete spectrum of legal services for businesses and can helpyou make the wisest choices on how to deal with your business throughout life and in the event of your death. We also offer a LIFT Start-Up Session™ or a LIFT Audit for an ongoing business, which includes a review of all the legal, financial, and tax systems you need for your business. Call us today to schedule.
Last modified: August 27, 2018