Having a chance at a good job is key to making it in the United States. Many people, however, aren’t given that chance because they have to disclose personal information, such as criminal and credit history on their job applications that may have no connection to the job for which they are applying. This can give employers the ability to judge applicants on more than merit alone. Recent requests by employers for social media usernames and passwords are of concern as well. While people of all races, ethnic backgrounds, and socio-economic status have experienced difficulty in applying for jobs, these issues present a more urgent challenge for communities of color who already experience higher levels of unemployment.
The U.S. incarcerates more of its citizens than any other country, a disproportionate number being African American and Latino. Once out of jail, many ex-offenders report experiencing issues with job applications and placement, and fear rejection due to their criminal history. With a dearth of options for employment, ex-offenders run the risk of violating probation or parole and possibly reoffending.
Credit checks also have a disproportionate impact on people of color. According to a 2010 survey conducted by the Society for Human Resources Professionals (SHRM), nearly half of employers check an employee’s credit history when hiring for some or all positions, and a 2007 Federal Reserve Board study found that people of color disproportionately had fair or poor credit. As a result, African American and Latino populations experience greater obstacles obtaining higher paying jobs (and therefore improving their economic position and socioeconomic status).
The use of social media presents a new barrier for people of color. Use among African Americans and Latinos remains high, and mandatory disclosure of usernames and passwords may disproportionately affect them. Allowing potential and even current employers access to personal information they would otherwise be prohibited from asking on an application or in an interview, could enable discrimination based on factors such as relationship status, parental status, race, religion, sexual orientation, political affiliations, personal interests, etc. As a whole, removing these and other barriers to employment is imperative. This will lead to a stronger workforce and sustainable economy.
The National Black Caucus of State Legislators (NBCSL) is committed to preserving opportunity and eliminating obstacles that prevent success. More recently, NBCSL ratified three resolutions aimed at expanding channels to employment:
- Reducing Credit-Based Barriers in Hiring and Employment (BFI-14-26), discouraging the use of credit scores and credit information in determining an applicant’s employability with limited exceptions.
- Supporting “Ban the Box” Initiatives to Facilitate Re-Entry to The Workforce (LJE-14-16) by discouraging mandatory disclosure of criminal history on applications before an initial interview.
- Promoting Individuals’ Rights Through Social Media Privacy Protection (TST-14-27), which supports an individual’s right to privacy by not having to divulge usernames and passwords to social media platforms in addition to educating younger populations about the safest ways to use social media.
SF 523 (2013) Employers’ criminal history reliance for job applicants – limitations and remedies imposition
|NBCSL Sponsors: Senators Bobby Champion and Jeff Hayden; Representative Rena Moran
Summary: This bill amends existing statute that prohibits public employers from requiring criminal history disclosure on applications, to include private employers. With the passage of this bill, both public and private employers cannot require disclosure of criminal history until after the application phase.
This statute does not apply, however, to employment opportunities where disclosure is mandated by law. This bill also creates remedies for applicants when an employer has violated this law.
Goals: This bill will prevent people from being removed from the hiring process due to prior criminal convictions. Bill passage may also encourage more people to apply for jobs without fear that their applications will be unfairly considered because of prior convictions.
Concerns: Waiting until after the application phase to inquire about criminal history can be costly and time-consuming for employers, especially if many applicants are removed from consideration and the employer has to extend its hiring process.
HB 5507 (2013) An Act Relating to Labor and Labor Relations – Fair Employment Practices
|NBCSL Sponsors: Representatives Anastasia Williams and Joseph Almeida
Summary: This bill prohibits an employer from inquiring into an applicant’s criminal history before the first interview. The employer has the ability to inquire about criminal history at the first interview or thereafter.
Goals: HB 5507 looks to increase opportunity and job placement for ex-offenders.
Concerns: Waiting until after the first interview to ask about criminal history can be costly for employers and a waste of time if applicants are going to be selected out of the process.
SB 361 (2011) An Act Preventing the Use of Credit Scores by Certain Employers in Hiring Decisions
|NBCSL Sponsors: Senators Edwin Gomes and Toni Nathaniel Harp; Representatives Douglas McCrory, Toni Walker, and Larry Butler
Summary: This bill provides that a public or private employer may not require an employee or a prospective employee to disclose credit information, such as their credit score, credit account balance, payment history, savings or checking account balances, or account numbers as a condition of employment unless:
Goals: Because no evidence has linked a person’s ability to perform his/her job and credit history, this bill is aimed at decreasing the use of credit reports in hiring decisions while still maintaining reasonable exceptions.
Concerns: Although an applicant is not required to disclose his/her credit information or history on the application, the employer still reserves the right to inquire about credit information at the interview. This may create an opportunity for applicants to be selected out if they disclose that information.
AB 22 (2011) An Act to…Amend the Labor Code, Relating to Employment
|NBCSL Sponsor: Assemblymember Mike Davis
Summary: This bill prohibits an employer or prospective employer, with the exception of certain financial institutions, from obtaining a consumer credit report, for employment purposes. Exceptions to this law include positions in the state Department of Justice, a managerial position, or a position where the employee would be a named signatory on a credit card or bank account for the employer. This bill also requires the applicant or employee be provided written notification that his/her credit report is being sought and the reasons why.
Goals: This bill would prevent those with poor and low credit scores from being prematurely removed from job consideration. In times with high rates of unemployment and economic downturn, it is not unusual for credit scores to suffer. By keeping credit scores from being a deciding factor, more people can become employed.
Concerns: Credit reporting agencies, manufacturing groups, and businesses have argued that credit reports can indicate whether a potential employee can act responsibly and reliably, especially when handling money, and have cautioned against employers not being able to use credit reports.
AB 181 (2013) An Act Relating to Employment…
|NBCSL Sponsors: Assemblymember Jason Frierson (primary sponsor); Senator Kelvin Atkinson (primary sponsor)
Summary: Parts of this bill prohibit a private employer from conditioning employment of an employee or a prospective employee on the disclosure of a username, password, or anything else that provides access to social media accounts. It also prevents an employer from taking adverse action (firing, disciplining, discriminating against, or failing to hire) against an employee or prospective employee for nondisclosure. Exceptions to the law allow an employer to ask for the username and password of another service that is not a social media platform, in order to access the employer’s internal computer or information system.
Goals: This bill provides more coverage and protection to current and prospective employees by maintaining their privacy.
Concerns: The bill does not prevent an employer from using information about an employee’s social media activities that is voluntarily provided by another employee. It also does not leave exceptions for employers who are investigating workplace misconduct or harassment.
SB 223 (2013) The Social Media Protection Act
|NBCSL Sponsors: Senators Nikiya Harris (primary sponsor), Lena Taylor (primary sponsor); Representatives Mandela Barnes, LaTonya Johnson, and Leon Young
Summary: This bill prohibits a public or private employer from requesting or requiring current and prospective employees, as a condition of employment, to provide access to their personal internet accounts. Employers are prohibited from taking adverse action against employees or applicants for nondisclosure. The bill leaves several exceptions, including allowing an employer to conduct an investigation into an employee’s personal internet account where the employer has reasonable cause to believe the employee has transferred proprietary information or other misconduct has occurred.
Goals: It will protect the privacy of employees and potential employees while still giving the employer some room to investigate instances of employee misconduct committed on personal internet accounts.
- Pew Center on the States brings policymakers and experts together to develop solutions that are driven by facts, and conduct reporting and in-depth research across the 50 states and the District of Columbia, using evidence to determine which policies work and which do not.
- The National Employment Law Project (NELP) works to restore the promise of economic opportunity in the 21st century economy. In partnership with national, state, and local allies, it promote policies and programs that create good jobs, strengthen upward mobility, enforce hard-won worker rights, and help unemployed workers regain their economic footing through improved benefits and services.