Social Media Use and Unemployment: Considerations for Black Lawmakers

Committees of Jurisdiction: Labor, Military, and Veterans’ Affairs (LMV) and Telecommunications, Science, and Technology (TST)

Introduction

EssenceMagSourcePhoto Credit: Essence.comIt seems that everything is communicated via the internet and social media these days, and a look down at your smartphone, tablet, or laptop screen affirms this assumption. While people of all ethnicities and racial groups use social media, African Americans and other minorities use it the most. Specifically, according to the Pew Center, African Americans over-index in the use of Twitter, YouTube, and other video sharing sites.

There is also another area where African Americans over index – unemployment. According to the U.S. Bureau of Labor, the May 2013 rate of unemployment for Blacks was 13.5 percent (as compared to 9.1 percent and 6.7 percent in Hispanics and Whites, respectively). And, each month the “jobless” gap between Blacks and other ethnic groups continues to widen.

A direct correlation between the Black unemployment rate and social media use is currently unknown. But, as Black Americans use the internet to look for jobs and to actively manage their personal social media accounts (both on and off the clock), legislators around the country are discussing bills that could disproportionately affect them in the long run.

Some employers have asked employees or applicants to submit personal social media account usernames and/or passwords as a condition of employment. Academic institutions and other entities seem to have followed suit. These actions have caused policymakers at the state and federal levels to examine social media policy and what can and cannot be requested by employers and academic institutions.

Pending legislation surrounding internet privacy, social media, and freedom of speech is currently being discussed and it is imperative that Black legislators stay at the forefront. As new policies develop, state lawmakers should stay vigilant to ensure that America’s most vulnerable communities are not negatively affected by social media and employment policies.



Federal Action

In February 2013, a bipartisan group of legislators re-introduced the Social Networking Online Protection Act (SNOPA). Sponsors include: Representatives Eliot Engel (D-NY), Jan Schakowsky (D-IL), Keith Ellison (D-MN), and Michael Grimm (R-NY). Originally introduced in 2012, this legislation limits how employers, schools and universities can ask employees, applicants, and students for social networking information. Specifically, SNOPA would prohibit institutions from requiring users to give up their log-in credentials and would protect users from being punished for refusing these requests. In addition, it would be unlawful to discriminate against, deny employment, or threaten action against any an applicant who declined to provide their online information.

The Password Protection Act (PPA) has also been introduced in the 113th Congress to address social media privacy for Americans. Introduced by Representative Ed Perlmutter (D-CO), PPA covers employees on a broader scale, and amends current law. Specifically, the bill prohibits any employer from coercing an employee for password information for any computer not owned by the company, business, or entity. Unlike SNOPA, the PPA does not include protection for students and does not specifically protect social media users.



State Action

TechMagzSourcePhoto Credit: Techmagz.comAccording to the National Conference of State Legislatures (NCSL), state lawmakers began to introduce legislation to prevent employers from requesting passwords to personal Internet accounts to get or keep a job in 2012. Some states have similar legislation to protect students – especially athletes - in public colleges and universities as well. Legislation has been introduced or is pending in at least 36 states.

    • Six states - California, Delaware, Illinois, Maryland, Michigan, and New Jersey - enacted legislation in 2012 that prohibits requesting or requiring an employee, student, or applicant to disclose a user name or password for a personal social media account.
      • California, Illinois, Maryland, and Michigan laws apply to employers.
      • California, Delaware, Michigan and New Jersey laws also apply to academic institutions.

  • Seven states - Arkansas, Colorado, New Mexico, Oregon, Utah, Vermont, and Washington - enacted legislation in 2013 (as of June 2013).
    • Arkansas, Colorado, Oregon, Utah, Vermont, and Washington laws apply to employers.
    • Utah, Oregon, and Arkansas laws also apply to academic institutions.
Table: Recently Passed State Social Media Privacy Policy

State Year Enacted Covers Students Covers Employees
Arkansas 2013 Yes Yes
California 2012 Yes Yes
Delaware 2012 Yes No
Colorado 2013 No Yes
Illinois 2012 No Yes
Michigan 2012 No Yes
Maryland 2012 No Yes
New Jersey 2012 Yes No
Oregon 2013 Yes Yes
Utah 2013 Yes Yes
Vermont 2013 No Yes
Washington 2013 No Yes

Whether to pass state legislation regarding social media and password protection or not is an issue of both legal and legislative implications. Some employers argue that proprietary information is at stake, while employees advocate for their individual rights. Civil rights advocates also warn against the potential for employment discrimination and retaliation. Whether intentional or not, a potential employer may obtain additional information about a candidate after viewing social networking sites that they would not ordinarily have had the legal right to obtain. This action could affect the hiring process and is therefore prohibited under Title VII of the 1964 Civil Rights Act, which requires that employment decisions are not be based on “race, color, religion, sex, or national origin.”

Conclusion
Protecting all Americans from discrimination and ensuring individual rights are priorities for the National Black Caucus of State Legislators. As social media continues to grow, so will the need for legislation to protect its users. Since African Americans and other minorities currently make up the majority of social media users, policies that attempt to reduce privacy expectations for social media users may disproportionally affect them and, potentially, their employment status. Black lawmakers must pay special attention to protect job seekers from unintended consequences or discrimination by these policies.

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