Tag: employment

Taking a bite out of Apple’s restrictive hiring policies

  Apple, maker of the iPhone and iPad, came under fire earlier this month when the San Francisco Chronicle revealed that the company was prohibiting those convicted of a felony in the last 7 years from working on the construction of an enormous new corporate campus in Cupertino, California.  Under pressure from the iron workers union and advocates for fair hiring policies, the company quickly reversed course: We recognize that this may have excluded some people who deserve a second chance. We have now removed that restriction and instructed our contractors on the project to evaluate all applicants equally, on a case-by-case basis, as we would for any role at Apple. But many believe that Apple can do more to end employment discrimination against those with criminal records and can set an example for the tech industry and the country in the process. The change in policy is certainly welcome. 12 million Americans have felony convictions in their past, and many of them are dependent on jobs in fields like construction where criminal background checks are not generally required of employees. The ACLU observed the significance of Apple’s move toward more inclusive employment practices on its Washington Markup blog last week: As a multinational corporation, [Apple’s] support for fair-chance hiring carries huge symbolic value, as well as positively affecting the lives of real people who have done their time and seek to rebuild their lives as productive neighbors, fathers and mothers, and sons and daughters. However, in a recent blog post, former NAACP president Benjamin Jealous remained concerned that, “the company’s response leaves too many unanswered questions about the status of the fired workers, the contours of Apple’s internal policy, and the company’s commitment to ensuring that this will never happen again.” Apparently some of the employees fired for having felony records will be able to reapply for their jobs, but Iron Workers Local Union 377, which represents many of the disqualified workers and led the call for Apple to revise its policy, is not yet satisfied, saying in a statement: While we appreciate Apple’s stated commitment to “second chances,” we do not know and so are obliged to ask what are the criteria for the “case by case basis” on which Apple will now evaluate workers. We fully understand Apple’s legitimate needs for security, but we believe strongly that there must be a nexus between those needs and any criteria for evaluation and possible exclusion of workers. The federal Equal Employment Opportunity Commission appears to agree with the union’s position.  According to EEOC enforcement guidelines, employers that bar those with criminal records from employment may be subject to liability under Title VII the federal Civil Rights Act unless such bars are “job related for the position in question and consistent with business necessity.” The guidelines also require an individualized assessment of each candidate based on a number of factors including the circumstances of the offense and evidence of subsequent good character and rehabilitation. As it stands now, how the criminal records of new applicants and previously dismissed employees will factor into the case-by-case evaluation Apple now supports is anybody’s guess. Many, including the National Employment Law Project (NELP), the ACLU, and Jealous, want to see Apple implement transparent company-wide fair-chance hiring practices consistent with EEOC guidelines, including banning the box.  In a recent op-ed piece in the Mercury News, NELP’s Michelle Natividad Rodriguez writes: If Apple’s commitment to “second chances” is genuine, then it should become a vocal corporate leader in the national movement for “fair chance” hiring reform, which has been adopted in 15 states and more than 100 cities and counties. One component of “fair chance” is to remove the check-box that asks about convictions and to delay any background-check screening. Too often employers discard job seekers who’ve checked the box, regardless of qualifications, job-relatedness of the conviction, or rehabilitation. …. Just as Apple has pledged to maintain labor and human rights standards with its supplier chain, it should ensure that its subcontractors, including in construction, adopt fair hiring practices. She also urges Apple, as a major federal contractor, to take a leading role in the campaign to implement fair-chance hiring in the public sector: Apple should also join the nearly 200 organizations and prominent individuals calling on President Barack Obama to take immediate executive action to ensure that federal agencies and contractors remove unnecessary barriers to employment for qualified job candidates with past records. As a major federal contractor, Apple can pave the way for other employers. The federal initiative will translate into real opportunities, as nearly one in four U.S. workers is employed either by a federal contractor, a subcontractor or the federal government.   You can find the full stories referenced above at the following links: ACLU: Apple Made the Right Call on Fair-Hiring Practices. Uncle Sam Should Follow Its Lead. Benjamin Jealous & Heather Warnken: Apple’s Teachable Moment Michelle Natividad Rodriguez: Apple Computer hiring: Commitment to second chances for felons still unclear   Read more

“Decades-long Arrest Wave Vexes Employers”

The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction.  The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford. Companies seeking new employees are forced to navigate a patchwork of state and federal laws that either encourage or deter hiring people with criminal pasts and doing the checks that reveal them. Employers are having to make judgments about who is rehabilitated and who isn’t. And whichever decision they make, they face increasing possibilities for ending up in court. Last August these two veteran reporters wrote about the increasing number of Americans burdened with status-based restrictions (“America Busted: As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime”), and two weeks ago they wrote about the assembly line justice in misdemeanor courts that makes it easy to pick up a criminal record (“Justice is Swift as Petty Crimes Clog Courts”).  The current installment shows how employers struggle to reconcile their conflicting obligations to protect their workplace and comply with state laws that may send conflicting signals (don’t ask, but do restrict). A final installment will deal with the difficulty for individuals with a record to restore their legal rights and social status. The article describes the conflicting signals sent by laws that encourage or require more stringent background checks, laws that direct employers not to ask about criminal record until an offer is made (“If it is a disqualifying offense, you’ve just wasted both the candidate’s and the employer’s time”), and the threat of EEOC enforcement action or negligent hiring suits.  Courts have backed employers in their use of background checks: A judge last year dismissed an EEOC suit accusing a Dallas events-marketing firm, Freeman Co., of a pattern of discrimination based partly on its use of criminal-background information. Judge Roger W. Titus, in dismissing the suit in federal court in Greenbelt, Md., said the agency was asking companies to ignore “criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC.” At the same time, laws that require employers to fire qualified workers seem ripe for challenge: Ohio in 2007 passed a law barring people convicted of certain crimes from working in public schools. The Cincinnati system discharged 10 employees, nine of them black. Two of the nine filed a suit in Cincinnati federal court, which is still pending, alleging racial discrimination.     One plaintiff, Eartha Britton, 60 years old, was an instructional assistant and 18-year veteran. Her crime: a 1983 conviction for being a go-between in the sale of $5 worth of marijuana, a conviction that was later expunged, the suit said. Through her attorney, she declined to be interviewed. In situations where the law does not require rejection, employers must do their best to reconcile the “varying impulses—to give job seekers a fair shot, to keep workplaces safe and to keep companies out of legal jeopardy.” Some states have developed standards to assist employers in charting this course, and others invite reliance on restoration mechanisms such as pardon or expungement (to be discussed in the next WSJ article).  It seems that employers who are trying to do the right thing would welcome some more coordinated national effort to address the issues raised by mass conviction.   Read more

Despite pardoning hundreds, out-going Illinois governor may leave significant clemency backlog

When disgraced Illinois governor Rod Blagojevich was removed from office in 2009, he left behind more than the ugly controversy that would eventually lead to a 14-year federal prison sentence: he also left behind a 7-year backlog of over 2,500 clemency recommendations from the state’s Prisoner Review Board (“PRB”).   Blago’s successor Pat Quinn declared in April 2009 his intention of “erasing the shameful logjam of cases in a methodical matter and with all deliberate speed,” stating that “Justice delayed is justice denied.”  Since then, Governor Quinn has disposed of a total of 3,358 clemency petitions, granting more than a third of them.  Of the 1,239 persons pardoned, most have also had their records expunged. However, despite his admirable efforts to restore regularity to Illinois pardoning, it appears that Quinn may leave his successor almost as large a backlog as he himself inherited.  This is because, during  his six years in office, the PRB has forwarded over 3,000 additional recommendations to the governor’s desk, most of which have not been decided.  Unless Quinn somehow finds a way to dispose of this still-large backlog of cases between now and January, Blagojevich’s irresponsible neglect of his pardoning responsibilities will have created a kink in the administration of the pardon power in Illinois that may not be worked out for years to come. If long waits have become the new normal for pardon applicants in Illinois, those seeking relief from collateral consequences would do well to consider the alternatives available under state law.  For example, Illinois courts are authorized to grant Certificates of Relief from Disabilities, which avoid numerous licensing restrictions and shield employers from negligent hiring liability; and, Certificates of Good Conduct, which relieve mandatory bars to employment and other opportunities and certify the recipient’s rehabilitation.  Courts are also authorized to seal and expunge records in certain cases. You can read about the latest round of Governor Quinn’s pardons in this Chicago Tribune article.  More information about relief and restoration of rights in Illinois can be found in the NACDL Restoration of Rights resource here. UPDATE:  In his final days in office, Governor Quinn pardoned more than 300 people, and denied about 1000 petitions. He left about 2000 petitions for his successor to act on.  Let us hope he has a similarly progressive view of pardoning. Read more