June 2010

Reminder to all Oregon employers: Credit checks of employees and applicants are restricted as of July 1, 2010.

BOLI has published rules meant to clarify the new credit check law. It will now be an unlawful employment action for employers to obtain or use credit history for employment purposes unless the employer fits into narrow statutory exceptions (for banks and law enforcement) or if credit history is substantially job-related. BOLI defines “substantially job-related” in new OAR 839-005-0080. BOLI describes only two categories of job positions for which a credit history is substantially job-related: a) when an essential function of the position requires access to financial information beyond that customarily provided in a retail transaction; or b) when a credit history is required as a condition of insurance or a surety/fidelity bond. Financial information “customarily” provided in retail transactions include the exchange of cash, checks, credit or debit card numbers.

In summary, there are only three reasons BOLI will accept for using credit checks for employment:

  1. If you are a bank, financial institution, or law enforcement;
  2. If you have to run employee credit checks because of insurance or bond requirements; or
  3. If the job position requires access to financial data beyond just cash, checks, and credit card numbers.

If you do obtain credit checks for one of these reasons, you must give the employee written notice beforehand, and must also comply with FCRA notice requirements. BOLI will enforce the new law, and can award civil damages similar to other civil rights laws enforced by BOLI. All employers should review their policies and procedures to ensure compliance with this new law by July 1, 2010.

If you have any questions about complying with this new law, please contact the attorneys of Sather, Byerly & Holloway, LLP at (503) 225-5858 or at www.sbhlegal.com.