Last summer, July 1, 2010, Oregon joined six other states, Washington,
Hawaii, Illinois, Maryland, Connecticut, and California, to place restrictions
on employers from conducting credit history checks in making employment
decisions. While many Oregonians are still not aware of the new protections,
the Job Applicant Fairness Act or (JAFA) was signed into law in Oregon
on March 29, 2010 by Governor Kulongoski in an effort to alleviate the
unemployment stress facing out-of-work Oregonians and to inject more fairness
into the employment setting.
In response to Oregon Senate Bill 1045 (JAFA), Oregon's Bureau of Labor
and Industries (BOLI) published its final rules to implement the provisions
of JAFA. In addition to prohibiting the unlawful practices discussed herein,
the statute enables employees and applicants the right to file a complaint
with the BOLI Commissioner or a civil action in the circuit courts of
Oregon. If you feel you were a victim of an unlawful employment practice
in Oregon or have further questions about the new worker protections please
Portland employment lawyer at Angel Law, P.C..
Under the new law, it is unlawful for employers to obtain for employment
purposes information contained in a credit report or the credit history
of an applicant or the credit information of an existing employee. Oregon
employers can no longer discharge, demote, suspend, retaliate or otherwise
discriminate against an applicant or an employee with regard to promotion,
compensation or the terms, conditions or privileges of employment based
on information in the credit report or credit history of applicants or
employees. Employment decisions based on the credit information of an
employee or applicant may constitute unlawful employment discrimination.
The detailed provisions of SB 1045 can be found in the
Oregon Revised Statutes chapter 659A. For the purposes of the statute, credit history means "any written
or other communication of any information by a consumer reporting agency
that bears on a consumer's creditworthiness, credit standing, or credit
capacity." Violations of this statute can now be filed as a complaint under
ORS 659A.820 and in a civil action under
There are exceptions, however, to the protections of the Job Applicant
Fairness Act which Oregon employees and applicants should be aware of.
Employers may in fact obtain credit reports for employment matters under
certain circumstances. These exceptions include:
- Federally insured banks or credit unions;
- Employers that are required by state or federal law to use an individual's
credit history for employment;
- Public safety officers and law enforcement; and
substantially job-related and the employer's reasons for the use of such information is disclosed
to the individual in writing.
As such, it was necessary for BOLI to define the new guideline of "substantially
job-related" - BOLI's Administrative Rules on the issue can be found
here. Generally stated, "substantially job-related" is a determination
with "respect to the position for which the individual is being considered
or holds." BOLI Administration Rules define "substantially job-related"
credit history information with regards to an applicant or employee as:
- 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;
- 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.
BOLI defines financial information as "information related to the
exchange of cash, checks, and credit or debit card numbers. In addition,
BOLI has also included that if an employer
does seek credit information and is doing so within the exceptions listed,
it must provide to the employee or prospective employee, in writing, the
employer's reasons for the use of such information. Moreover, the
burden of proving the employer's disclosure to the employee of its
reasons for the use of such information rests with the employer.
The Job Applicant Fairness Act affords Oregon employees protection from
the potential harsh effects of a negative credit report, at a time when
jobs are already difficult enough to come by. Too often a credit report
contains erroneous or outdated information that most consumers find impossible