In the past few weeks, the District of Columbia became the newest jurisdiction to prohibit employers from inquiring into their job applicants and current employees’ credit information.
The “Fair Credit in Employment Amendment Act of 2016” (the Act) amends the D.C. Human Rights Act of 1977, by adding credit information as a trait mandating protection from discrimination and makes it discriminatory for most employers to directly or indirectly inquire, use or refer to an applicant, intern or employee’s credit information at any point during the hiring process or thereafter.
Unlike the Ban the Box law passed by D.C. in 2014, where employers can check for criminal convictions after a conditional offer is made and rescind an offer under certain circumstances, the D.C. Council concluded that credit history is rarely, if ever, relevant in the hiring process.
There are some exemptions where an employer may still request and obtain credit information:
- Where the employer is otherwise required by District law to (a) require, request, suggest, or cause any employee to submit credit information, or (b) use, accept, refer to, or inquire into an employee’s credit information;
- Where an employee is applying for a position as a police officer, including campus police officers, and other positions with a law enforcement function;
- Employees of the Office of Chief Financial Officer of the District of Columbia;
- Where an employee is required to possess a security clearance under District law;
- Disclosures by District government employees of their credit information to the Board of Ethics and Government Accountability, or the Office of the Inspector General, or to the use of such disclosures by those agencies;
- Financial institutions, where the employee’s position involved access to “personal financial information”; or
- Where an employer requests or receives credit information pursuant to a lawfully obtained subpoena, court order or, law enforcement investigation.
Enforcement is administered by the D.C. Office of Human Rights (OHR), and if, after a hearing and the OHR determines a violation has occurred, an employer faces a $1,000 fine for the first violation, $2,000 for the second, and $5,000 for each successive violation.
Employer contractors in D.C. should review the Act for any applicable exemptions; review and revise background check procedures as necessary; prepare and train HR personnel who do background checks on whether credit information may be used; and confirm that employment, placement and temporary agencies used in the hiring process are aware of the new law and have taken steps to be in compliance.