• Questions Regarding Marijuana Convictions on a Job Application Must Be Clear and Unambiguous
  • April 29, 2009 | Author: Daniel Sanchez-Behar
  • Law Firm: Hinshaw & Culbertson LLP - Los Angeles Office
  • Three applicants sought jobs at California locations of a national coffee retailer. In doing so, they each completed a job application that is used nationwide by the employer. The first page of the application included the question “Have you been convicted of a crime in the last seven years . . .” The reverse side of the application included a California disclaimer informing the applicant that he or she “may omit any convictions for the possession of marijuana . . . that are more than two years old . . .” The three applicants, none of whom had a history of marijuana arrests or convictions, were not hired. They consequently sued the employer and alleged that the question as to convictions in the previous seven years was unlawful under California Labor Code Sections 432.7 and 432.8, which prohibit employers from asking about marijuana-related convictions that are more than two years old. The court held that although the language of the disclaimer itself was not ambiguous, its placement was. The court reasoned that the application did not unambiguously direct California applicants not to disclose marijuana convictions because the California disclaimer was placed on the second page of the application, where applicants might not see it. However, the court also held that the applicants failed to establish that they fell within the class of persons for whose protection the legislative provision was enacted because none of them had marijuana convictions and they suffered no monetary damages. Although the employer prevailed in this case, the holding is significant because it essentially requires California employers to use job applications that clearly and unambiguously state that information regarding marijuana convictions is not to be disclosed. One way to ensure this, as the court suggested, is to include the California disclaimer immediately following the convictions question.

    Starbucks Corp. v. Superior Ct., 168 Cal. App. 4th 1436 (2008)