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Labor & Employment Law

: California Labor & Employment Defense Blog

California Employment Applications Must Exclude Certain Marijuana Convictions -- Starbucks v. Superior Court (Lords)


An obscure provision of California law, Labor Code section 432.8, prohibits employers from asking job applicants about marijuana-related convictions which are more than two years old.  Most standard employment applications include a general question asking for disclosure of all criminal convictions.  As a practical matter California applications must therefore include a special disclaimer to inform applicants that  these marijuana convictions are excluded from the generic disclosure request.  

In Starbucks v. Orange County Superior Court, the Fourth District Court of Appeal recently clarified two questions: (1) how employers should physically design their applications to comply with the statute; and (2) which applicants will have standing to sue if the application is defective.

 As to the first issue, Starbucks used a standard nationwide application form which actually did contain the special California disclaimer language under a heading "For California Applicants Only."  The problem, however, was that this disclaimer appeared only on the back of the form alongside unrelated boilerplate disclaimers for Massachusetts and Maryland applicants.  

The Court explained that "Had Starbucks included the California disclaimer immediately following the conviction questions, Starbucks would have been entitled to summary judgment in its favor on the reasonableness of the employment application."  But placing the language on the back of the page in a nationwide "one-size-fits-all style" was not sufficiently clear to meet the standard of "clarity for which California law strives." 

Luckily for Starbucks it was entitled to summary judgment on other grounds.  For one thing, the class representatives had never themselves been convicted of anything.  As a result, they had no right to sue under a statute which was designed to protect reformed stoners rather than law abiding citizens with nothing to hide.  If the Court had gone the other way on this standing-to-sue issue Starbucks could have faced $26 million in fines for all persons who ever filled out an application.     

This is an instructive holding which will undoubtedly be cited as authority in cases testing the sufficiency of all manner of disclaimers contained in form documents.  The lesson for employers and other business is that they must consider the physical layout of their standardized forms as well as the actual language used in the form.      



Full post as published by California Labor & Employment Defense Blog on December 11, 2008 (boomark / email).

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