Audet & Partners, LLP is investigating claims by construction workers who claim to have been discharged from work on Apple’s new Cupertino campus based solely on their status as previously convicted felons. While for certain types of employment a prior felony conviction may bear some relevance to potential job responsibilities, this generally does not hold true for construction work and situations such as the recent felon firings at Apple.
The San Francisco Chronicle recently reported on one worker, Kevin Yip, who had been gainfully employed as a construction worker on the emerging Apple campus for several weeks earning between $1,200 and $1,500/week. When his employment was abruptly terminated, Mr. Yip was told that the termination was not performance-related, but solely based his having been convicted of a felony within the past seven years. Mr. Yip has since moved back with his parents and relies on unemployment compensation to provide for his 22-month-old son.
Both Federal and California state laws prohibit action taken by employers that adversely impacts employees and bears little relationship to the employee’s ability to perform his or her job functions.
Under Federal law, 29 CFR 1607 (1978):
§ 7287.4. Employee Selection. (a) Selection and Testing. Any policy or practice of an employer or other covered entity which has an adverse impact on employment opportunities of individuals on a basis enumerated in the Act is unlawful unless the policy or practice is job–related, as defined in Section 7287.4(e). The Commission herein adopts the Uniform Guidelines on Employee Selection Procedures promulgated by various federal agencies, including the EEOC and Department of Labor.
Similarly, California Gov’t Code section 12940(a)states that:
“.. it is “unlawful for an employer to refuse to hire or employ a person or to refuse to select a person… or to bar or to discharge a person from employment… or to discriminate against a person in compensation or in terms, conditions, or privileges of employment” (because of one of the enumerated protected basis).  There are two types of employment discrimination – disparate treatment and disparate impact.  Under disparate treatment, it is unlawful to disqualify a person of one race for having a conviction or arrest record, while not disqualifying a person of another race. “Disparate impact” discrimination occurs, when regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, has a disproportionate adverse effect on members of the protected class.  Under disparate impact, an employer’s policy denying employment based on the existence of past convictions could be discriminatory, if persons of that race are disproportionally more likely to have criminal convictions.”
If you believe you have been terminated from your employment on the sole basis of having been convicted of a felony, we urge you to contact Audet & Partners, LLP for a free, confidential consultation with one of our experienced employment law attorneys. You can contact us either by calling (800) 965-1461, or by completing and submitting the confidential inquiry form on the right side of this page.