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;
(A) Financial information customarily provided in a retail
transaction includes
information related to the exchange of cash, checks and
credit or debit card numbers; or
(b) 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.
-Provided by Seyfarth Shaw LLP
