This comes to us directly from Seyfarth Shaw labor and employment attorney, Pam Devata.
The Oregon Bureau of Labor and Industries just published its final administrative rules regarding Senate Bill 1045 (OL 2010. Ch. 102)(that amends Oregon Revised Statute 659A.885) and that restricts an employer’s use of credit history in employment decisions. These regulations go into effect July 1, 2010 (though the law is currently in effect).
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 or
prospective 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.
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