Summary Judgement Affirmed Involving the Illinois Credit Privacy Act

In December 2019, The Appellate Court of Illinois affirmed summary judgement in favor of the defendant in a case regarding the use of credit checks during the application process for a customer service representative position.

Defendant, Commonwealth Edison Company, rejected the plaintiff (Rivera) for a position as a customer service representative based on the results of the plaintiff's credit history check. Rivera filed a class action lawsuit, alleging that this constituted a violation of the Illinois Credit Privacy Act. The Act prohibits employers from arriving at employment decisions based on an individual's credit report or credit history. Additionally, the Act disallows employers from obtaining an applicant's or employee's credit report or from inquiring about the person's credit history.

However, there are exceptions. If an employer is seeking to establish that a position or group has a "bona fide occupational requirement" that an applicant/employee has a "satisfactory credit history," the employer must show that at least one of the following circumstances exists:

  • 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 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.
  • The employee's or applicant's credit history is otherwise required by or exempt under federal or State law.

The employer argued in its motion for summary judgment that since the position "involves access to personal or confidential information" of the employer's customers, a satisfactory credit history was a bona fide occupational requirement. It was the contention of the employer that the position in question required regular access to personal/confidential information such as Social Security numbers, dates of birth and credit card information. The employer's motion was granted by the lower court.

The plaintiff appealed, arguing that the position did not require actual "access" to information and that the information in question was not "personal or confidential." The plaintiff's stance was that customer service representatives are merely "conduits" between the customer and other employees as it relates to the information at issue. The Act defines "personal or confidential information" as, "sensitive information that a customer or client of the employing organization gives explicit authorization for the organization to obtain, process, and keep; that the employer entrusts only to managers and a select few employees; or that is stored in secure repositories not accessible by the public or low-level employees."

The appellate court rejected the plaintiff's argument, concluding that to be classified as a "low-level employee," the individual would need to possess a similar level of access to the information in question as the general public. The court determined that the position being pursued by the plaintiff was accompanied by a need and ability to obtain information much greater than that of the general public. The court also rejected the plaintiff's contention regarding the "conduit" status of a customer service representative, finding that "after initially inputting the information into [the system], [they] continue throughout their employment to have the ability to view at least partial Social Security numbers, driver's license numbers, bank account numbers and credit card numbers, in addition to customers' names, address histories, dates of birth, and other identifying information" and that they "use this customer information routinely to assist customers as part of their job duties." Ultimately, the appellate court affirmed the lower court's grant of summary of judgment.

Currently there are laws in 10 states, Chicago, New York City, Philadelphia, Puerto Rico and Washington, D.C. that prohibit employers from requesting or considering an applicant or employee's credit reports or other credit history information unless there is an applicable exemption. In light of this recent decision, employers should take the time to review their policies and practices when accessing or considering credit information to ensure compliance with all applicable laws.

Posted: February 14, 2020

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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