Appellate Court Considers The Illinois 'Employee Credit Privacy Act'

Author:Mrs Pamela Devata and Jennifer L. Mora
Profession:Seyfarth Shaw LLP

Seyfarth Synopsis: On December 3, 2019, the Appellate Court of Illinois affirmed summary judgment in favor of a public utility company that considered credit checks for individuals applying for a customer service representative position due to an exception in the credit check law for positions involving “access to personal or confidential information.”


In the last few years, much of what has been published has focused on employer use of criminal history background checks, including the process for obtaining such information under the Fair Credit Reporting Act (“FCRA”), consideration of criminal records under the Equal Employment Opportunity Commission's 2012 Enforcement Guidance, and the myriad state and local ban-the-box laws sweeping the nation. A recent Illinois decision, however, serves as a reminder to employers that there are a handful of state and local laws that restrict their ability to order and consider credit history information for hiring and other employment decisions.

The Illinois Credit Privacy Act

The Illinois Credit Privacy Act generally prohibits employers from making any employment decision based upon an individual's credit report or credit history. The Act also prohibits employers from obtaining a credit report regarding an applicant or employee, and from asking an applicant or employee about the individual's credit history. There is, however, an exception in the Act when “satisfactory credit history” is an “established bona fide occupational requirement of a particular position or a particular group of an employer's employees.” Establishing that the position or group has that “bona fide occupational requirement” requires the employer to show that “at least one” of the seven following circumstances is present:

The employer is required by law to obtain bonding or other security for the individual in the position; Unsupervised access to cash or marketable assets valued over $2,500; Signatory power over business assets of $100 or more per transaction; Managerial positions that involve setting the direction or control of the business; Access to personal or confidential information, financial information, trade secrets, or state or national security information; The position meets criteria under any state or federal regulations that are designed to establish when credit history can be a bona fide occupational qualification; and/or The individual's credit history is required by or exempt under federal or...

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