Sixty percent of employers now conduct credit checks on job applicants. Credit checks in hiring put job seekers in a Catch-22, in which they can’t pay their bills because they lost their jobs, but now they can’t get a job because they can’t pay their bills. Congressmen Steve Cohen (D-TN) and Luis Gutierrez (D-IL) recently introduced HR 3149, the Equal Employment for All Act, to restrict the use of credit checks in employment and put job seekers back to work. The bill will soon be heard in the House Financial Services Committee and needs the support of your elected officials. You can visit www.creditcatch22.org to learn more about the bill, and you can click on “Contact Your Legislators” to talk to your representatives in government about stopping this discriminatory practice.
What if you have a conviction or arrest record and an employer in Wisconsin does not hire you because of it? Well, you have rights. In Wisconsin, employers may not discrimination against an employee or applicant because of an arrest or conviction record. The exception is when the conviction substantially relates to the job. Also, if an employer intends to pull a background check on an employee or applicant, it must give notice, disclosure, to the person that it intends to do so and also get written permission from the employee or applicant to do so. Failure to either disclose or get written permission is a violation of Federal law, the Fair Credit Reporting Act. If a background report, even though accurate, is the basis for termination, not getting hired or other adverse employment action, the employer must abide by other notice and disclosure requirements. Most importantly, the employer must give advance notice of the termination, non-hire or other adverse action that it is going to take the action and that a report was used as part of its decision. The advance notice is so the employee or applicant can get a copy of the report, review and correct it if necessary. An employer must give notice of certain rights under the Federal law, in writing, when advising the employee or applicant of the adverse action. Failing to perform any of these obligations may give rise to a claim for damages against the employer or the agency that provided the employer a background report. Damages can include lost income, emotional distress or, if actual damages do not exist, statutory damages as determiend by a judge. The law also provides for the potential recovery of attorney’s fees and the cost of litigation.
Background Reports or Background Checks that are inaccurate can cost you your job. These reports are often governed by the Fair Credit Reporting Act as a consumer report. An employer must disclose or tell you in writing that it will obtain such a report and it must get your permission in writing and in advance of obtaining such a report. Your permission must be requested in a single document, not combined with an application. If the employer takes some adverse action, like firing you from your job or not hiring you, based on information in the background report, then it must also inform you of this fact in advance of taking the action, give you a copy of the report and an opportunity to correct any inaccuracies. When an employer jumps the gun and fires or fails to hire without the advance notice and opportunity to correct, the employer is likely in violation of your rights under federal law. Such violations carry the right to recover damages.