Caught in a catch-22 with the EEOC - Texas passes bill that limits employer liability
The Texas Senate has passed HB 1188.
The Texas Legislature has taken an important step to help protect
employers who are willing to give applicants with a criminal record a
second chance. House Bill 1188, which takes effect Sept. 1, 2013, will
limit the liability of employers who hire applicants with a criminal
record. The new law provides that a “cause of action may not be brought
against an employer, general contractor, premises owner, or other third
party solely for negligently hiring or failing to adequately supervise
an employee, based on evidence that the employee has been convicted of
an offense." HB 1188 will benefit both employers and those with criminal records who
are seeking employment, who often have difficulty finding a job.
Marc Levin, Director of the Center for Effective Justice at the Foundation commented,
at least 20 percent of Texas adults having a criminal record, we must
ensure individuals can punch the clock after they have done their time.
Unfortunately, many business leaders have identified the threat of being
sued for negligent hiring as one of the main reasons they cannot hire
and retain otherwise qualified and productive rehabilitated
COLORADO SENATE BILL 13-018
Colorado Bans Use of Credit Reports for Employment Purposes
Effective July 1, 2013, Colorado becomes
the ninth state to restrict an employer’s right to obtain and use credit
information for making employment decisions. Colorado joins California,
Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and
Senate Bill 13-018
– signed into law by Governor Hickenlooper on April 19 – creates the
"Employment Opportunity Act", which specifies the purposes for which
consumer credit information (i.e., consumer credit reports and credit
scores) can be used by an employer or potential employer (jointly
referred to as "employer" and excludes any state or local law
More specifically, the bill:
- Prohibits an employer's use of consumer credit information for
“employment purposes” unless the information is “substantially related
to the employee’s current or potential job”;
- Requires an employer to disclose to an employee or applicant for
employment when the employer uses the employee's consumer credit
information to take adverse action against him or her and the particular
credit information upon which the employer relied;
- Authorizes an employee aggrieved by a violation of the above provisions to bring suit for an injunction, damages, or both; and
- Requires the department of labor and employment to enforce the laws related to employer use of consumer credit information.
The bill defines each of the following terms:
- Employee means every person who may be
“permitted, required, or directed by any employer in consideration of
direct or indirect gain or profit, to engage in any employment and
includes an applicant for employment.”
- Employment purposes refers to the evaluation of
a person for “employment, hiring, promotion, demotion, reassignment,
adjustment in compensation level, or retention as an employee.”
- Substantially related to the employee’s current or potential job
means the information in the credit report is related to the position
for which the subject is being evaluated, because the position is one
for executive or management level personnel or officers, or employees
who constitute professional staff to executive and management personnel,
and the position involves one or more of the following:
- Setting the direction or control of a business, division, unit, or an agency of the business;
- A fiduciary responsibility to the employer;
- Access to customers, employees, or the employer’s personal
or financial information, other than information customarily provided in
a retail transaction;
- The authority to issue payments, collect debts, or enter into contracts; or
- Involves contracts with defense, intelligence, national security, or space agencies of the federal government.
The Colorado Division of Labor will be in charge of enforcing the
act. Someone claiming injury because of a violation of the act is
entitled to an administrative hearing and, if the prevailing party,
recovery of a civil penalty not to exceed $2,500.
Currently, Georgia, Indiana, Florida and Kentucky are considering
similar bills that would limit credit reports for employment purposes
Connecticut Law: Employers restricted use on Credit Reports
effective October 1, 2011.
Effective October 1, 2011, a new law in Connecticut – Senate Bill No. 361 (S.B. 361) – signed by
Governor Dannel Malloy will prohibit certain employers from using credit
reports in making hiring and employment decisions regarding existing employees
or job applicants. The law applies to all employers in Connecticut with at
least one employee. Connecticut is one of six U.S. states – joining Hawaii,
Illinois, Maryland, Oregon, and Washington – that currently prohibit the use of
credit history in employment decisions.
Alert California signs into law restricting Credit
Reports for Employers.
The final version of California Assembly Bill No. 22 (AB 22)
limits credit checks of job applicants by most employers was signed into
law by Governor
Jerry Brown on October 8, 2011. Effective January 1, 2012, the bill will prohibit most employers
employers, with the exception of certain financial institutions, from
consumer credit reports for employment purposes. California now joins
Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington as the
U.S. states that currently restrict the use of credit checks by most
for employment decisions.
Chapter 3.6. Employer Use of Consumer Credit Reports California
1024.5. (a) An employer or prospective employer shall not use a consumer credit report for employment purposes unless the
position of the person for whom the report is sought is any of the following:
(1) A managerial position.
(2) A position in the state Department of Justice.
(3) That of a sworn peace officer or other law enforcement position.
(4) A position for which the information contained in the report is required by law to be disclosed or obtained.
(5) A position that involves regular access, for any purpose other than the routine solicitation and processing of credit card
applications in a retail establishment, to all of the following types of information of any one person:
(A) Bank or credit card account information.
(B) Social security number.
(C) Date of birth.
(6) A position in which the person is, or would be, any of the following:
(A) A named signatory on the bank or credit card account of the employer.
(B) Authorized to transfer money on behalf of the employer.
(C) Authorized to enter into financial contracts on behalf of the employer.
(7) A position that involves access to confidential or proprietary
information, including a formula, pattern, compilation, program, device,
method, technique, process or trade secret that (i) derives independent
economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons
who may obtain economic value from the disclosure or use of the
information, and (ii) is the subject of an effort that is reasonable
under the circumstances to maintain secrecy of the information.
(8) A position that involves regular access to cash totaling ten
thousand dollars ($10,000) or more of the employer, a customer, or
client, during the workday.
(b) This section does not apply to a person or business subject to
Sections 6801 to 6809, inclusive, of Title 15 of the United States Code
and state and federal statutes or regulations implementing those
sections if the person or business is subject to compliance oversight by
a state or federal regulatory agency with respect to those laws.
(c) The following definitions apply to this section:
(1) “Consumer credit report” has the same meaning as defined in subdivision (c) of Section 1785.3 of the Civil Code, but does
not include a report that (A) verifies income or employment, and (B) does not include credit-related information, such as credit
history, credit score, or credit record.
(2) “Managerial position” means an employee covered by the executive exemption set forth in subparagraph (1) of paragraph
(A) of Section 1 of Wage Order 4 of the Industrial Welfare Commission (8 Cal. Code Regs. 11040).