On November 25, 2023, Law N.º 31944 was published, imposing restrictions on the use of credit reports by public and private employers when selecting workers. At the same time, this new law limits the content of the risk reports prepared by the Private Risk and Protection Information Centers (“CEPIR", for its acronym in Spanish).
The most relevant aspects of this new provision are explained below.
1. What has changed?
- CEPIRs may not issue "value judgments" or, in general, "any subjective expression" regarding the individual or legal entity on whom the report is made. In practice, this means that the report should avoid with any additions such as "OK," "Risk," "Normal" or other similar terms.
- Public and private institutions that use the CEPIRs when conducting personnel selection procedures must have the applicant's written permission to access their information.
- Even with this permission, excluding or disqualifying an applicant based on the credit report is prohibited as a "discriminatory act.".
- It should be noted that the SBS (Superintendencia de Banca, Seguros y AFP), the SMV (Superintendencia del Mercado de Valores) and the entities supervised by both superintendencies are outside the scope of this regulation.
2. What is the problem?
- By prohibiting the use of credit reports as grounds for exclusion or disqualification from the process of applying for a job, this rule seeks to prevent discrimination on the basis of credit record.
- Thus, this rule has a constitutionally legitimate purpose since the Constitution prohibits discrimination (treating someone differently without objective or valid reason, i.e., unreasonably). However, the way in which it seeks to achieve this purpose (not being able to disqualify an applicant based on their credit report) and its scope of application (some companies do, but others do not) is questionable.
- First of all, it is contradictory to require the applicant's consent to review the credit report but forbid using the report to determine whether the applicant continues or not. If the credit report was requested, it is because it is part of the comprehensive evaluation of the applicant; credit information reflects not only a person's financial solvency but, depending on the circumstances of the case, a person's failure to pay their debts can reveal their character and anticipate problems.
- On the other hand, what happens when a company that is not supervised by the SBS or the SMV must hire finance managers, treasurers or similar positions, or even roles that do not handle money but receive laptops or cell phones from the company, for example? To fill these posts, it is relevant to review the applicant's credit report.
3. What is coming?
- The regulation to be issued by the PCM (Presidencia del Consejo de Ministros) should provide some solution, within the small margin allowed by the new Law, to address the problems it generates. There is a 90-day term to issue the regulation.
- In the meantime, the restrictions are already applicable for CEPIRs and for employers, so credit reports will have to be adapted. If a procedure to select personnel is in progress, the applicant's consent to use the credit report must be obtained.
We hope that this information will be of relevance to you and your company. If you require any further information, do not hesitate to contact us.
