California Labor Code section 432.8, prohibits employers from asking job applicants about marijuana-related convictions, which are more than two years-old. Many standard employment applications include a general question asking for disclosure of “all” criminal convictions.  California applications must therefore include a special disclaimer to inform applicants that marijuana convictions are excluded from the generic disclosure.  The disclaimer itself is not enough, however, in Starbucks v. Superior Court (Lords), Starbucks was held liable due to the disclaimer’s placement.  Starbucks used a standard nationwide disclaimer stating:

CALIFORNIA APPLICANTS ONLY: Applicant may omit any convictions for the possession of marijuana (except convictions for the possessions of marijuana on school grounds or possession of concentrated cannabis) that are more than two (2) years old, and any information concerning a referral to, and participation in, any pretrial or post trial diversion program.

The court found an issue because the disclaimer was placed at the end of a wordy paragraph on the back of the form, which included disclaimers for the United States, Maryland, and Massachusetts.  Of particular significance was that the disclaimer was not located near the question that pertained to the disclaimer. Luckily for Starbucks, it was entitled to summary judgment on the basis that the class representatives had never themselves been convicted of anything. The result clarified that employees and prospective employees do not have a right to sue under a statute that does not apply directly to them – in this case, the court held they had no standing because they had not been convicted of marijuana possession. 

Many employers continue to use “standard” employment applications.  These applications are often reviewed infrequently.  Employers should draw two important lessons from this case.

  1. Employers should physically design their applications to include the proper disclaimer in close proximity to the question; and
  2. Applicants have standing to sue only if they can prove they were directly named or effected by the alleged unlawful conduct.

SharedHR clients are presented with an application that is reviewed by counsel several times annually and meets the above requirements.  The application goes further in that the applicant agrees to arbitrate any application or employment related issue. A few simple steps to maintain compliance go a long way towards avoiding litigation.