• Using an individual's credit history or credit report in decisions relating to recruitment, hiring, compensation, discharge, or a "term, condition, or privilege of employment";
• Inquiring into an applicant's or employee's credit history;
• Obtaining an applicant's or employee's credit report from a consumer reporting agency;
• Retaliating or discriminating against an individual for filing a complaint, assisting or participating in an investigation or action involving a violation of the Act, or for opposing a violation; or
• Requiring individuals to waive their rights under the Act.

The Act does not, however, affect an employer's ability to conduct a thorough background investigation that does not contain a credit history or report, as permitted under the Fair Credit Reporting Act. Thus driving record reports, educational records, prior employment references and other non-credit information may still be used if it complies with other laws.

The Act does not apply to the following employers or professions:

• Banks, savings and loans, and other financial institutions;
• Insurance or surety businesses;
• State law enforcement or investigative units;
• State or local government agencies which already require use of the employee's or applicant's credit history or credit report; and
• Entities defined as debt collectors under federal or state statutes.

The Act will also not apply to a variety of jobs if "a satisfactory credit history is an established bona fide occupational requirement of a particular position or a particular group of an employer's employees." To qualify the job must possess at least one of the following circumstances:

• State or federal law requires bonding or other security covering an individual holding the position;
• The duties of the position include custody of or unsupervised access to cash or marketable assets valued at $2,500 or more;
• The duties of the position include signatory power over business assets of $100 or more per transaction;
• The position is a managerial position which involves setting the direction or control of the business;
• The position involves access to personal or confidential information, financial information, trade secrets, or State or national security information;
• The position meets criteria in the administrative rules, if any, that the U.S. Department of Labor or the Illinois Department of Labor has promulgated to establish the circumstances in which a credit history is a bona fide occupational requirement; or
• The employee's or applicant's credit history is otherwise required by or exempt under federal or State law.
• If a violation is found under the Act, the person may obtain injunctive relief, damages, or both against the employer and the court must award costs and reasonable attorney's fees for the prevailing plaintiff.

As a result of the aforementioned, before obtaining any credit reports or credit histories, employers should determine if they are exempt from the Act. If they are not, the employer should then identify which jobs and positions prohibit the use of credit information and refrain from obtaining and using such information for applicants or employees of those positions to avoid potential liabilities.

Employers using third party agents to perform credit checks should be advised that the Act does not limit your ability because of actions of your agent and therefore employers should be careful to ensure compliance not only within their company policy, but also within the policy of their agent.

Tyler J. Pratt
Kavanagh, Scully, Sudow, White & Frederick, P.C.
January 2011

KAVANAGH, SCULLY, SUDOW, WHITE & FREDERICK, P.C.
Attorneys at Law

301 SW Adams Street
Suite 700
Peoria, IL 61602-1574
Telephone: 309-676-1381
Fax: 309-676-0324

The attorneys at Kavanagh, Scully, Sudow, White & Frederick, P.C., serve clients throughout Illinois, including Peoria County, Knox County, Fulton County, McLean County, Woodford County, and Tazewell County, and the communities of Peoria, East Peoria, Bloomington, Springfield, Galesburg, and Pekin.