Complying with Oregon’s New Employment Credit Report Law

Nick Fishman

This is a reminder to all employers in the state of Oregon that Senate Bill 1045 that restricts an employer’s use of credit history in employment screening decisions goes into effect July 1, 2010.

Seyfarth Shaw labor and employment attorney, Pam Devata was kind enough to pass on an important guide on who this law affects and how to comply.  See below.

You may recall that Oregon Revised Statute 659A.885 specifically prohibits an employer from obtaining or using credit history for employment purposes of an applicant or employee unless that credit history information is “substantially job-related, and the employer’s reasons for the use of such information are disclosed to the employee orprospective employee in writing.”

The regulations provide guidance on the following:

– The regulations define “employer” to mean “any person who in this state, directly or through and agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed.”  Thus, the law likely only applies to employers in Oregon.

-The burden of proving that the employer disclosed its reasons for the use of credit information is solely on the employer.

-“Substantially job-related” is defined as:

(a) An essential function of the position at issue requires access to financial information

not customarily provided in a retail transaction that is not a loan or extension of credit;

(b) Financial information customarily provided in a retail transaction includes

information related to the exchange of cash, checks and credit or debit card numbers; or

(c) The position at issue is one for which an employer is required to obtain credit history

as a condition of obtaining insurance or a surety or fidelity bond.

-Employers may not retaliate against applicants or employees claiming a violation of the law

-It is also an unlawful employment practice for any person to “aid, abet, incite, compel or coerce the doing of any of the acts in violation of OL 2010. Ch. 102.”  As such, CRAs should be careful about assisting employers with adjudication guidelines or hiring criteria dealing with the use of credit information in Oregon.

Interestingly, the regulations do not give any guidance on when an employer has to give the required disclosure of the reasons for the use of credit information, only that the employer bears the burden of doing so.

Oregon has provided a Technical Assistance for Employers hotline at 971-673-0824. The new rules are available online at http://www.oregon.gov/BOLI/LEGAL/docs/RulesSoS0052010.pdf.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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