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Apple lifts ban on construction workers with felony convictions, must do more – two perspectives

April 21, 2015

Not just one bad Apple: We need an executive order to ‘Ban the Box’

by Denise Mewbourne

Apple stated Thursday that it has now “removed that restriction [banning workers with a felony conviction within the last seven years] 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.” We commend Apple for taking prompt action to change a facially discriminatory policy. Had they not done this, All of Us or None, Southern Coalition for Social Justice and Legal Services for Prisoners with Children were prepared to file a complaint as a class with the U.S. Labor Department.

The new $5 billion Apple campus under construction is providing jobs to thousands of construction workers.

The new $5 billion Apple campus under construction is providing jobs to thousands of construction workers.

Without additional clarification from Apple about the details of its policy change, however, it is difficult to know whether a “case by case” analysis will simply equate to a “case by case” exclusion of all workers with criminal records. In order to comply with Equal Employment Opportunity Commission (EEOC) guidance, and to adopt a more fair approach to hiring formerly convicted laborers, we recommend that Apple write a narrowly tailored screening policy that states that a criminal record may only be considered as one part of a hiring decision, and only then if there is a close nexus between the specific conviction and the nature of the work to be performed.

Apple’s reversal happened because of the willingness of Ironworkers Local 377 to bring Apple’s policy to the attention of the public. However, our experience tells us that many more companies have yet to be exposed for their discrimination against workers with conviction histories – this is not just a case of one bad Apple, but rather is emblematic of a widespread pattern of large corporations not following EEOC guidelines.

Dorsey Nunn, executive director of Legal Services for Prisoners with Children and a formerly incarcerated person himself, said, “Until we broaden the question to one of ending structural discrimination for formerly incarcerated people, we will continue to fall short of true victory and meaningful change.”

That’s why we are continuing to press the president of the United States to issue an executive order to “Ban the Box” for private contractors doing business with the federal government. Trillions of dollars are circulated among these contractors, representing millions of jobs.

We are continuing to press the president of the United States to issue an executive order to “Ban the Box” for private contractors doing business with the federal government.

President Obama considered the problems that formerly incarcerated people face serious enough that he established a federal reentry council. An executive order “banning the box” for private contractors working with the federal government offers an important opportunity to further demonstrate meaningful support for formerly incarcerated people reentering society.

Legal Services for Prisoners with Children will continue to fight to ensure that workers with convictions are treated fairly and equally under the law. If you are aware of any corporation, especially those that contract with the federal government, which has a policy or practice of refusing to hire any workers with criminal convictions, please contact Dorsey Nunn at 415-625-7052 or Dorsey@prisonerswithchildren.org or Brittany Stonesifer at 415-266-7046 or brittany@prisonerswithchildren.org.

Denise Mewbourne provides administrative and program support to Legal Services for Prisoners With Children. She can be reached at denise@prisonerswithchildren.org

Apple’s teachable moment

by Ben Jealous and Heather Warnken

Inclusion inspires innovation. This mantra, featured prominently on Apple’s website, was put to the test last week when the company came under fire for dismissing several construction workers who had been convicted of a felony.

The architect’s rendering of Apple’s “spaceship” or “donut” campus upon completion

The architect’s rendering of Apple’s “spaceship” or “donut” campus upon completion

According to the San Francisco Chronicle, anyone who had been convicted of a felony in the past seven years was banned from working on the construction of Apple’s new Cupertino campus. Apple and its contractor, DPR Construction, also denied employment to people with felony arrests, not just convictions.

Since then, Apple has taken a step in the right direction by rescinding the policy. But in an industry already notorious for being out of touch with the broader opportunity gap in America, the company’s leadership has an opportunity to do much more: to lead the tech field on inclusion as much as it already leads on innovation.

Apple’s quick response was encouraging. In a statement yesterday, the company noted that its policy “may have excluded some people who deserve a second chance” and that it has “never had a blanket ban on hiring people with felony convictions.” This was an indication that Apple understands the devastating impact of blanket discrimination on the 12 million Americans with a felony conviction in their past.

Still, 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.

The Cupertino campus project, expected to yield thousands of construction jobs, can still provide a unique opportunity for Apple to support the local economy and provide work for an underserved population. It is not too late for Apple to right a wrong, prove its commitment to inclusion, and become a leader on fair hiring practices.

Life is hard for someone with a felony conviction. People returning to their communities not only have a difficult time finding a job – more than 60 percent are unable to find work in their first year out – but also face other challenges that make landing gainful employment harder. Even someone who served a short sentence for a low-level crime will often run into barriers to stable housing, healthcare, educational opportunities and public benefits. In 2008, the reduced job prospects of people with felony convictions cost the U.S. economy between $57 billion and $65 billion in lost output.

The Cupertino campus project, expected to yield thousands of construction jobs, can still provide a unique opportunity for Apple to support the local economy and provide work for an underserved population. It is not too late for Apple to right a wrong, prove its commitment to inclusion, and become a leader on fair hiring practices. Here are three steps that Apple can take in coming days:

Apple should publicly address the fate of the fired employees.

Reports have indicated that Apple may have plans to reevaluate or rehire the impacted employees, but it should make this intention publicly clear. The number of workers fired may have been small compared with Apple’s national employee base, but a job is important for any single worker, especially one operating in the context of perpetual discrimination. Apple should clarify its hiring policies and publicly “Ban the Box.”

In yesterday’s statement, Apple leaders denied practicing blanket discrimination. But at the same time they acknowledged that workers on the campus project had been victims of discrimination. In order to clear things up, Apple should work with community leaders to develop transparent and inclusive hiring policies that ensure that all applicants are considered regardless of their past mistakes. Crucially, the company should agree not to deny employment to people whose crimes are irrelevant to the job at hand.

Apple should also follow in the footsteps of large companies in other fields and announce a companywide “Ban the Box” program.

The company already claims that it considers all applicants on a “case by case” basis, and it could stand by this promise by removing questions about job applicants’ criminal records from initial employment applications. Walmart and other major companies have already “banned the box,” alongside cities like San Francisco, 15 states and over 100 other cities and counties nationwide.

Apple should move Silicon Valley forward on second chance employment.

Finally, Apple should use its perch as an industry leader to move Silicon Valley forward on fair hiring practices for applicants with criminal records.

Apple could convene a Business Leaders Summit to encourage its peers to learn from their mistake. The summit could provide the tools and encouragement for others in the tech industry to commit to fair hiring practices. It could also impart an important lesson to others in the industry: Discrimination is not only unfair to qualified job seekers who have made amends for their past mistakes (or been arrested but not convicted). It also means employers may be blindly screening out some of their best and brightest applicants.

There is a growing bipartisan consensus, echoed by leaders as diverse as Sen. Cory Booker and Sen. Rand Paul, that mass incarceration has failed the nation. Seventy million people in the United States, more than 1 in 4 adults, have some type of record of arrests or convictions. These records last a lifetime. This is long after the individual has been held responsible for the crime committed.

Discrimination means employers may be blindly screening out some of their best and brightest applicants.

Apple’s policy has already led to the dismissal of employees succeeding in their positions, supporting themselves and their families. This is exemplary of the problem. It is also the way forward. Apple can move closer to realizing its stated vision of a diverse and inclusive workforce where inclusion inspires innovation. With these steps, Apple can ensure that the reality of this vision does not leave millions of Americans with records behind.

If Silicon Valley is going to achieve its goal of becoming a true meritocracy, it is not enough for us to focus on treating our most privileged workers more fairly. We need to ensure just treatment of the least privileged as well.

Ben Jealous is partner at Kapor Capital and former president and CEO of the NAACP. Heather Warnken is a program director at the Chief Justice Earl Warren Institute on Law and Social Policy, UC Berkeley School of Law, and criminal justice fellow for The Women’s Foundation of California. They can be reached via Trice Edney Communications, at fatimastar0@juno.com.

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