On May 31, 2012, the Senate approved a bill (S455) that would prohibit employers from seeking credit checks on employees or applicants under most circumstances. The bill now heads to the Assembly for its consideration, where the bill already has several supporters.
This bill prohibits an employer from requiring a credit check on a current or prospective employee, unless the employer is required to do so by law, or reasonably believes that an employee has engaged in a specific activity that is financial in nature and constitutes a violation of law. It prohibits any employment discrimination against a current or prospective employee based on information in a credit report. The bill does not prevent an employer from performing a credit inquiry or taking an employment action if credit history is a bona fide occupational qualification of a particular position or employment classification, including:
1. A managerial position which involves setting the financial direction or control of the business;
2. A position which involves access to customers’, employees’, or employers’ personal belongings or financial assets or financial information, other than information customarily provided in a retail transaction;
3. A position which involves a fiduciary responsibility to the employer, including, but not limited to, the authority to issue payments, transfer money or enter into contracts or involves leases of real property;
4. A position which provides an expense account for travel; or
5. A law enforcement officer for a law enforcement agency, or a governmental or non-governmental security personnel position, including security personnel in a homeland security agency.
The bill prohibits an employer from requiring a prospective employee to waive or limit any protection granted under the bill as a condition of applying for or receiving an offer of employment. The bill also prohibits retaliation or discrimination against an individual because the individual has done or was about to do any of the following:
1. File a complaint pursuant to provisions of the bill;
2. Testify, assist, or participate in an investigation, proceeding, or action concerning a violation of the bill; or
3. Otherwise oppose a violation of the bill.
Any current, prospective, or former employee aggrieved under the provisions of the bill may bring an action in a court of competent jurisdiction for appropriate injunctive relief and damages, including reasonable attorneys’ fees and court costs. In addition, the bill provides for the imposition of civil penalties in an amount not to exceed $2,000 for the first violation, and $5,000 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development.
