Florida Senate - 2012                              CS for SB 102
       
       
       
       By the Committee on Commerce and Tourism; and Senator Siplin
       
       
       
       
       577-02029-12                                           2012102c1
    1                        A bill to be entitled                      
    2         An act relating to credit reports; prohibiting an
    3         employer from using a job applicant’s credit report or
    4         credit history to make certain hiring, compensation,
    5         or other employment decisions; providing specific
    6         situations where an employer may use such information;
    7         providing definitions; providing exemptions for
    8         certain types of employers; providing remedies for
    9         aggrieved persons; providing for court costs;
   10         providing for a plaintiff to post a bond in certain
   11         situations; amending s. 626.9541, F.S.; prohibiting an
   12         insurer using a rate, rating schedule, rating manual,
   13         or an underwriting rule that is not contained in a
   14         rating manual and is determined in whole or in part on
   15         the basis of a credit report or credit score of an
   16         insured; including the refusal to insure or continue
   17         to insure any individual or risk because of the
   18         insured’s or applicant’s credit report or credit score
   19         among the list of activities constituting unfair
   20         methods of competition and unfair or deceptive acts;
   21         amending s. 626.9741, F.S.; prohibiting the use by
   22         insurers of credit reports and credit scores in making
   23         rating determinations; deleting provisions limiting
   24         and regulating the use of credit scores by insurers
   25         when making rating determinations; deleting the
   26         definitions of the terms “adverse decision” and
   27         “tier”; providing an effective date.
   28  
   29  Be It Enacted by the Legislature of the State of Florida:
   30  
   31         Section 1. Use of a job applicant’s credit report or credit
   32  history.—
   33         (1) Except as provided in subsection (2), an employer may
   34  not use an applicant’s credit report or credit history for the
   35  purpose of denying employment to the applicant or for
   36  determining the applicant’s compensation or the terms,
   37  conditions, or privileges of employment.
   38         (2) An employer may request or use an applicant’s credit
   39  report or credit history if:
   40         (a) The information will be used for a purpose other than
   41  one prohibited by this section;
   42         (b) The employer has a bona fide purpose for requesting or
   43  using information in the credit report or credit history which
   44  is substantially related to the job; and
   45         (c) The ability to request such information was disclosed
   46  to the applicant and the employer obtained permission from the
   47  applicant to request the information.
   48         (3) For purposes of this section, a position for which an
   49  employer has a bona fide purpose includes a position that:
   50         (a)Is managerial or supervisory;
   51         (b) Involves access to personal information of a customer,
   52  employee, or employer, except for personal information
   53  customarily provided in a retail transaction;
   54         (c) Involves a fiduciary responsibility to the employer,
   55  including the authority to issue payments, collect debts,
   56  transfer money, or enter into contracts;
   57         (d)Involves the use of an expense account or a corporate
   58  debit or credit card;
   59         (e)Authorizes the employee to have access to information,
   60  including a trade secret, formula, pattern, compilation,
   61  program, device, method, technique, or process that derives
   62  actual or potential independent economic value from not being
   63  generally known to, and not being readily ascertainable by
   64  proper means by, other persons who can obtain economic value
   65  from the disclosure or use of the information and is the subject
   66  of efforts that are reasonable under the circumstances to
   67  maintain its secrecy; or
   68         (f) Involves public safety, such as a law enforcement
   69  officer, peace officer, or other position involving enforcement
   70  of state or federal criminal laws.
   71         (4) As used in paragraph (3)(a), the term:
   72         (a) “Managerial” means a position that requires an
   73  individual to formulate and effectuate management policies by
   74  expressing and making operative the decisions of the employer.
   75         (b) “Supervisory” means a position in which an individual
   76  has the authority, in the interest of the employer, to hire,
   77  transfer, suspend, lay off, recall, promote, discharge, assign,
   78  reward, or discipline other employees, or the responsibility to
   79  direct them, adjust their grievances, or recommend such action
   80  where the authority or responsibility is not merely routine or
   81  clerical, but requires the use of independent judgment.
   82         (5) This section does not apply to an employer that is:
   83         (a) Expressly permitted or required to inquire into an
   84  applicant’s credit report or credit history for employment
   85  purposes pursuant to a federal or state law.
   86         (b) A financial institution that accepts deposits that are
   87  insured by a federal agency, or an affiliate or subsidiary of
   88  the financial institution.
   89         (c) A credit union or state-chartered bank registered with
   90  the Office of Financial Regulation.
   91         (d) An entity that is registered as an investment advisor
   92  with the United States Securities and Exchange Commission, or an
   93  affiliate of the entity.
   94         (6)(a)Without regard to any other remedy or relief to
   95  which a person is entitled, a person aggrieved by a violation of
   96  this section may bring an action to obtain a declaratory
   97  judgment that an act or practice violates this section and to
   98  enjoin the violator from further violations.
   99         (b) A person who has suffered a loss as a result of a
  100  violation of this section and prevails may recover actual
  101  damages, plus court costs.
  102         (c) In any action brought under this section, upon motion
  103  of the defendant, alleging that the action is frivolous, without
  104  legal or factual merit, or brought for the purpose of
  105  harassment, the court may, after hearing evidence as to the
  106  necessity therefor, require the plaintiff to post bond in an
  107  amount that the court finds reasonable to indemnify the
  108  defendant for any damages incurred, including reasonable
  109  attorney fees. This subsection does not apply to any action
  110  initiated by the enforcing authority.
  111         Section 2. Paragraphs (o) and (x) of subsection (1) of
  112  section 626.9541, Florida Statutes, are amended to read:
  113         626.9541 Unfair methods of competition and unfair or
  114  deceptive acts or practices defined.—
  115         (1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE
  116  ACTS.—The following are defined as unfair methods of competition
  117  and unfair or deceptive acts or practices:
  118         (o) Illegal dealings in premiums; excess or reduced charges
  119  for insurance.—
  120         1. Knowingly collecting any sum as a premium or charge for
  121  insurance, which is not then provided, or is not in due course
  122  to be provided, subject to acceptance of the risk by the
  123  insurer, by an insurance policy issued by an insurer as
  124  permitted by this code.
  125         2. Knowingly collecting as a premium or charge for
  126  insurance any sum in excess of or less than the premium or
  127  charge applicable to such insurance, in accordance with the
  128  applicable classifications and rates as filed with and approved
  129  by the office, and as specified in the policy; or, in cases when
  130  classifications, premiums, or rates are not required by this
  131  code to be so filed and approved, premiums and charges collected
  132  from a Florida resident in excess of or less than those
  133  specified in the policy and as fixed by the insurer. This
  134  provision does shall not be deemed to prohibit the charging and
  135  collection, by surplus lines agents licensed under part VIII of
  136  this chapter, of the amount of applicable state and federal
  137  taxes, or fees as authorized by s. 626.916(4), in addition to
  138  the premium required by the insurer or the charging and
  139  collection, by licensed agents, of the exact amount of any
  140  discount or other such fee charged by a credit card facility in
  141  connection with the use of a credit card, as authorized by
  142  subparagraph (q)3., in addition to the premium required by the
  143  insurer. This subparagraph does shall not be construed to
  144  prohibit collection of a premium for a universal life or a
  145  variable or indeterminate value insurance policy made in
  146  accordance with the terms of the contract.
  147         3.a. Imposing or requesting an additional premium for a
  148  policy of motor vehicle liability, personal injury protection,
  149  medical payment, or collision insurance or any combination
  150  thereof or refusing to renew the policy solely because the
  151  insured was involved in a motor vehicle accident unless the
  152  insurer’s file contains information from which the insurer in
  153  good faith determines that the insured was substantially at
  154  fault in the accident.
  155         b. An insurer that which imposes and collects such a
  156  surcharge or which refuses to renew such policy shall, in
  157  conjunction with the notice of premium due or notice of
  158  nonrenewal, notify the named insured that he or she is entitled
  159  to reimbursement of such amount or renewal of the policy under
  160  the conditions listed below and will subsequently reimburse him
  161  or her or renew the policy, if the named insured demonstrates
  162  that the operator involved in the accident was:
  163         (I) Lawfully parked;
  164         (II) Reimbursed by, or on behalf of, a person responsible
  165  for the accident or has a judgment against such person;
  166         (III) Struck in the rear by another vehicle headed in the
  167  same direction and was not convicted of a moving traffic
  168  violation in connection with the accident;
  169         (IV) Hit by a “hit-and-run” driver, if the accident was
  170  reported to the proper authorities within 24 hours after
  171  discovering the accident;
  172         (V) Not convicted of a moving traffic violation in
  173  connection with the accident, but the operator of the other
  174  automobile involved in such accident was convicted of a moving
  175  traffic violation;
  176         (VI) Finally adjudicated not to be liable by a court of
  177  competent jurisdiction;
  178         (VII) In receipt of a traffic citation which was dismissed
  179  or nolle prossed; or
  180         (VIII) Not at fault as evidenced by a written statement
  181  from the insured establishing facts demonstrating lack of fault
  182  which are not rebutted by information in the insurer’s file from
  183  which the insurer in good faith determines that the insured was
  184  substantially at fault.
  185         c. In addition to the other provisions of this
  186  subparagraph, an insurer may not fail to renew a policy if the
  187  insured has had only one accident in which he or she was at
  188  fault within the current 3-year period. However, an insurer may
  189  nonrenew a policy for reasons other than accidents in accordance
  190  with s. 627.728. This subparagraph does not prohibit nonrenewal
  191  of a policy under which the insured has had three or more
  192  accidents, regardless of fault, during the most recent 3-year
  193  period.
  194         4. Imposing or requesting an additional premium for, or
  195  refusing to renew, a policy for motor vehicle insurance solely
  196  because the insured committed a noncriminal traffic infraction
  197  as described in s. 318.14 unless the infraction is:
  198         a. A second infraction committed within an 18-month period,
  199  or a third or subsequent infraction committed within a 36-month
  200  period.
  201         b. A violation of s. 316.183, when such violation is a
  202  result of exceeding the lawful speed limit by more than 15 miles
  203  per hour.
  204         5. Upon the request of the insured, the insurer and
  205  licensed agent shall supply to the insured the complete proof of
  206  fault or other criteria that which justifies the additional
  207  charge or cancellation.
  208         6. An No insurer may not shall impose or request an
  209  additional premium for motor vehicle insurance, cancel or refuse
  210  to issue a policy, or refuse to renew a policy because the
  211  insured or the applicant is a handicapped or physically disabled
  212  person, so long as such handicap or physical disability does not
  213  substantially impair such person’s mechanically assisted driving
  214  ability.
  215         7. An No insurer may not cancel or otherwise terminate any
  216  insurance contract or coverage, or require execution of a
  217  consent to rate endorsement, during the stated policy term for
  218  the purpose of offering to issue, or issuing, a similar or
  219  identical contract or coverage to the same insured with the same
  220  exposure at a higher premium rate or continuing an existing
  221  contract or coverage with the same exposure at an increased
  222  premium.
  223         8. An No insurer may not issue a nonrenewal notice on any
  224  insurance contract or coverage, or require execution of a
  225  consent to rate endorsement, for the purpose of offering to
  226  issue, or issuing, a similar or identical contract or coverage
  227  to the same insured at a higher premium rate or continuing an
  228  existing contract or coverage at an increased premium without
  229  meeting any applicable notice requirements.
  230         9. An No insurer may not shall, with respect to premiums
  231  charged for motor vehicle insurance, unfairly discriminate
  232  solely on the basis of age, sex, marital status, or scholastic
  233  achievement.
  234         10. An insurer may not use any rate, rating schedule,
  235  rating manual, or underwriting rule that is not contained in a
  236  rating manual and that is determined in whole or in part on the
  237  basis of an insured’s credit report or credit score as defined
  238  in s. 626.9741.
  239         11.10. Imposing or requesting an additional premium for
  240  motor vehicle comprehensive or uninsured motorist coverage
  241  solely because the insured was involved in a motor vehicle
  242  accident or was convicted of a moving traffic violation.
  243         12.11.An No insurer may not shall cancel or issue a
  244  nonrenewal notice on any insurance policy or contract without
  245  complying with any applicable cancellation or nonrenewal
  246  provision required under the Florida Insurance Code.
  247         13.12.An No insurer may not shall impose or request an
  248  additional premium, cancel a policy, or issue a nonrenewal
  249  notice on any insurance policy or contract because of any
  250  traffic infraction when adjudication has been withheld and no
  251  points have been assessed pursuant to s. 318.14(9) and (10).
  252  However, this subparagraph does not apply to traffic infractions
  253  involving accidents in which the insurer has incurred a loss due
  254  to the fault of the insured.
  255         (x) Refusal to insure.—In addition to other provisions of
  256  this code, the refusal to insure, or continue to insure, any
  257  individual or risk solely because of:
  258         1. Race, color, creed, marital status, sex, or national
  259  origin;
  260         2. The residence, age, or lawful occupation of the
  261  individual or the location of the risk, unless there is a
  262  reasonable relationship between the residence, age, or lawful
  263  occupation of the individual or the location of the risk and the
  264  coverage issued or to be issued;
  265         3. The insured’s or applicant’s failure to agree to place
  266  collateral business with any insurer, unless the coverage
  267  applied for would provide liability coverage which is excess
  268  over that provided in policies maintained on property or motor
  269  vehicles;
  270         4. The insured’s or applicant’s failure to purchase
  271  noninsurance services or commodities, including automobile
  272  services as defined in s. 624.124;
  273         5. The fact that the insured or applicant is a public
  274  official; or
  275         6. The fact that the insured or applicant had been
  276  previously refused insurance coverage by any insurer, when such
  277  refusal to insure or continue to insure for this reason occurs
  278  with such frequency as to indicate a general business practice;
  279  or.
  280         7. The insured’s or applicant’s credit report or credit
  281  score as defined in s. 626.9741.
  282         Section 3. Section 626.9741, Florida Statutes, is amended
  283  to read:
  284         626.9741 Use of credit reports and credit scores by
  285  insurers.—
  286         (1) An insurer may not use credit reports or credit scores
  287  in making rating determinations. The purpose of this section is
  288  to regulate and limit the use of credit reports and credit
  289  scores by insurers for underwriting and rating purposes. This
  290  section applies only to personal lines motor vehicle insurance
  291  and personal lines residential insurance, which includes
  292  homeowners, mobile home owners’ dwelling, tenants, condominium
  293  unit owners, cooperative unit owners, and similar types of
  294  insurance.
  295         (2) As used in this section, the term:
  296         (a) “Adverse decision” means a decision to refuse to issue
  297  or renew a policy of insurance; to issue a policy with
  298  exclusions or restrictions; to increase the rates or premium
  299  charged for a policy of insurance; to place an insured or
  300  applicant in a rating tier that does not have the lowest
  301  available rates for which that insured or applicant is otherwise
  302  eligible; or to place an applicant or insured with a company
  303  operating under common management, control, or ownership which
  304  does not offer the lowest rates available, within the affiliate
  305  group of insurance companies, for which that insured or
  306  applicant is otherwise eligible.
  307         (a)(b) “Credit report” means any written, oral, or other
  308  communication of any information by a consumer reporting agency,
  309  as defined in the federal Fair Credit Reporting Act, 15 U.S.C.
  310  ss. 1681 et seq., bearing on a consumer’s credit worthiness,
  311  credit standing, or credit capacity, which is used or expected
  312  to be used or collected as a factor to establish a person’s
  313  eligibility for credit or insurance, or any other purpose
  314  authorized pursuant to the applicable provision of such federal
  315  act. A credit score alone, as calculated by a credit reporting
  316  agency or by or for the insurer, may not be considered a credit
  317  report.
  318         (b)(c) “Credit score” means a score, grade, or value that
  319  is derived by using any or all data from a credit report in any
  320  type of model, method, or program, whether electronically, in an
  321  algorithm, computer software or program, or any other process,
  322  for the purpose of grading or ranking credit report data.
  323         (d) “Tier” means a category within a single insurer into
  324  which insureds with substantially similar risk, exposure, or
  325  expense factors are placed for purposes of determining rate or
  326  premium.
  327         (3) An insurer must inform an applicant or insured, in the
  328  same medium as the application is taken, that a credit report or
  329  score is being requested for underwriting or rating purposes. An
  330  insurer that makes an adverse decision based, in whole or in
  331  part, upon a credit report must provide at no charge, a copy of
  332  the credit report to the applicant or insured or provide the
  333  applicant or insured with the name, address, and telephone
  334  number of the consumer reporting agency from which the insured
  335  or applicant may obtain the credit report. The insurer must
  336  provide notification to the consumer explaining the reasons for
  337  the adverse decision. The reasons must be provided in
  338  sufficiently clear and specific language so that a person can
  339  identify the basis for the insurer’s adverse decision. Such
  340  notification shall include a description of the four primary
  341  reasons, or such fewer number as existed, which were the primary
  342  influences of the adverse decision. The use of generalized terms
  343  such as “poor credit history,” “poor credit rating,” or “poor
  344  insurance score” does not meet the explanation requirements of
  345  this subsection. A credit score may not be used in underwriting
  346  or rating insurance unless the scoring process produces
  347  information in sufficient detail to permit compliance with the
  348  requirements of this subsection. It shall not be deemed an
  349  adverse decision if, due to the insured’s credit report or
  350  credit score, the insured continues to receive a less favorable
  351  rate or placement in a less favorable tier or company at the
  352  time of renewal except for renewals or reunderwriting required
  353  by this section.
  354         (4)(a) An insurer may not request a credit report or score
  355  based upon the race, color, religion, marital status, age,
  356  gender, income, national origin, or place of residence of the
  357  applicant or insured.
  358         (b) An insurer may not make an adverse decision solely
  359  because of information contained in a credit report or score
  360  without consideration of any other underwriting or rating
  361  factor.
  362         (c) An insurer may not make an adverse decision or use a
  363  credit score that could lead to such a decision if based, in
  364  whole or in part, on:
  365         1. The absence of, or an insufficient, credit history, in
  366  which instance the insurer shall:
  367         a. Treat the consumer as otherwise approved by the Office
  368  of Insurance Regulation if the insurer presents information that
  369  such an absence or inability is related to the risk for the
  370  insurer;
  371         b. Treat the consumer as if the applicant or insured had
  372  neutral credit information, as defined by the insurer;
  373         c. Exclude the use of credit information as a factor and
  374  use only other underwriting criteria;
  375         2. Collection accounts with a medical industry code, if so
  376  identified on the consumer’s credit report;
  377         3. Place of residence; or
  378         4. Any other circumstance that the Financial Services
  379  Commission determines, by rule, lacks sufficient statistical
  380  correlation and actuarial justification as a predictor of
  381  insurance risk.
  382         (d) An insurer may use the number of credit inquiries
  383  requested or made regarding the applicant or insured except for:
  384         1. Credit inquiries not initiated by the consumer or
  385  inquiries requested by the consumer for his or her own credit
  386  information.
  387         2. Inquiries relating to insurance coverage, if so
  388  identified on a consumer’s credit report.
  389         3. Collection accounts with a medical industry code, if so
  390  identified on the consumer’s credit report.
  391         4. Multiple lender inquiries, if coded by the consumer
  392  reporting agency on the consumer’s credit report as being from
  393  the home mortgage industry and made within 30 days of one
  394  another, unless only one inquiry is considered.
  395         5. Multiple lender inquiries, if coded by the consumer
  396  reporting agency on the consumer’s credit report as being from
  397  the automobile lending industry and made within 30 days of one
  398  another, unless only one inquiry is considered.
  399         (e) An insurer must, upon the request of an applicant or
  400  insured, provide a means of appeal for an applicant or insured
  401  whose credit report or credit score is unduly influenced by a
  402  dissolution of marriage, the death of a spouse, or temporary
  403  loss of employment. The insurer must complete its review within
  404  10 business days after the request by the applicant or insured
  405  and receipt of reasonable documentation requested by the
  406  insurer, and, if the insurer determines that the credit report
  407  or credit score was unduly influenced by any of such factors,
  408  the insurer shall treat the applicant or insured as if the
  409  applicant or insured had neutral credit information or shall
  410  exclude the credit information, as defined by the insurer,
  411  whichever is more favorable to the applicant or insured. An
  412  insurer shall not be considered out of compliance with its
  413  underwriting rules or rates or forms filed with the Office of
  414  Insurance Regulation or out of compliance with any other state
  415  law or rule as a result of granting any exceptions pursuant to
  416  this subsection.
  417         (5) A rate filing that uses credit reports or credit scores
  418  must comply with the requirements of s. 627.062 or s. 627.0651
  419  to ensure that rates are not excessive, inadequate, or unfairly
  420  discriminatory.
  421         (6) An insurer that requests or uses credit reports and
  422  credit scoring in its underwriting and rating methods shall
  423  maintain and adhere to established written procedures that
  424  reflect the restrictions set forth in the federal Fair Credit
  425  Reporting Act, this section, and all rules related thereto.
  426         (7)(a) An insurer shall establish procedures to review the
  427  credit history of an insured who was adversely affected by the
  428  use of the insured’s credit history at the initial rating of the
  429  policy, or at a subsequent renewal thereof. This review must be
  430  performed at a minimum of once every 2 years or at the request
  431  of the insured, whichever is sooner, and the insurer shall
  432  adjust the premium of the insured to reflect any improvement in
  433  the credit history. The procedures must provide that, with
  434  respect to existing policyholders, the review of a credit report
  435  will not be used by the insurer to cancel, refuse to renew, or
  436  require a change in the method of payment or payment plan.
  437         (b) However, as an alternative to the requirements of
  438  paragraph (a), an insurer that used a credit report or credit
  439  score for an insured upon inception of a policy, who will not
  440  use a credit report or score for reunderwriting, shall
  441  reevaluate the insured within the first 3 years after inception,
  442  based on other allowable underwriting or rating factors,
  443  excluding credit information if the insurer does not increase
  444  the rates or premium charged to the insured based on the
  445  exclusion of credit reports or credit scores.
  446         (3)(8) The commission may adopt rules to administer this
  447  section. The rules may include, but need not be limited to:
  448         (a) Information that must be included in filings to
  449  demonstrate compliance with subsection (3).
  450         (b) Statistical detail that insurers using credit reports
  451  or scores under subsection (5) must retain and report annually
  452  to the Office of Insurance Regulation.
  453         (c) Standards that ensure that rates or premiums associated
  454  with the use of a credit report or score are not unfairly
  455  discriminatory, based upon race, color, religion, marital
  456  status, age, gender, income, national origin, or place of
  457  residence.
  458         (d) Standards for review of models, methods, programs, or
  459  any other process by which to grade or rank credit report data
  460  and which may produce credit scores in order to ensure that the
  461  insurer demonstrates that such grading, ranking, or scoring is
  462  valid in predicting insurance risk of an applicant or insured.
  463         Section 4. This act shall take effect July 1, 2012.