Credit Checks: Yes or No?

As reported by the Wall Street Journal and by SHRM the EEOC has been holding hearings whether the use of credit checks on potential employees should be utilized by a company in making a hiring decision. Representatives from SHRM (tesitmony can be found here), the US Chamber of Commerce, the law firm of SeyfarthShaw, LLP, and others testified on behalf of continuing the practice of using credit checks. Advocates for low income individuals testified against their use. The major point appears to be that poor credit potentially could be a bar to gaining employment in these tougher economic times. I have had some clients and students inquire about the use of credit checks as well. So I thought I would weigh in on the subject for my readers.

Credit checks usage as a background check, and indeed all background checks, are treated the same as consumer credit checks and are governed by the Fair Credit Reporting Act. The FCRA requires that you have an applicants permission to check their background. It also requires that if you make some adverse determination on the basis of that background check that you inform them, give them an opportunity to respond and to potentially correct the information if it is indeed incorrect. You can find the entire FCRA here. (Note it is an 86-page document.) The law does hold a company to the standard of insuring that their practices do not result in disparate impact, recognizing that minorities have historically have poorer credit records than do non-minorities, in some cases due to discrimination.

So the major complaint about the use of credit history as a hiring tool is that some companies use it across the board for all applicants as an indicator of "character" and "personal responsibililty." They deem this as "fitness for the job." In my opinion this is a poor decision making process and a misuse of the law. Character and personal responsibility are better left to the interview. Using the credit report is the lazy way out. Of course if they screw this up, they may be conducting illegal interviews as well.

What is the proper use of the credit check as a decision making tool? Determining if the position requires the employee to handle company money, company credit, customer money or customer credit, such as access to credit cards. Putting people in these positions without a credit check could expose the company to liability, either due to internal theft or to theft of consumer information. Let me give an example. I once ran across a company that would do a credit check on an employee on a whim. Poor decision making. Unfortunately for them, the one person they did not credit check was the person they hired to be their accountant. She had a good resume and she interviewed very well. She came across as trustworthy. So imagine their surprise when auditors discovered that she had embezzled over $60,000. If they had check her credit they would have discovered that she was $120,000 in debt. That might not have altered their decision to hire her, after all she was a good accountant. But it might have put them on alert to more closely manage her work. Either way money, time, effort, and heartache might have been prevented.

So my answer to the question in the title is YES. I would use, and have used, credit checks in making determinations on candidates for positions in which the future employee would be exposed to things that might damage my company or a client of the company. If you are running a piece of machinery, interviewing candidates, emptying the trash, filing reports, sewing clothes, cleaning the carpet I don't care what your credit history has been. I just require that you come to work and do a good job. If your credit history gets your car repossed then it might become an issue, but only if you can no longer get to work.

Will companies continue to use the credit check incorrectly? I am pretty sure the answer to that is YES. These are probably also the same companies that violate the FLSA, the Civil Rights Act, FMLA, the ADA and most of the other laws. Does that mean all of those have to be changed? Nope. Just need to penalize companies that violate them.

There is no one-to-one connection between your character and your credit... not today anyway.

So what do you do? Are you a YES or a NO?

You can find a differing opinion from Lance Haun here.