A recent California appellate court case, Starbucks Corporation v. Lord, addressed the issue of how applicants are asked about criminal records on an application form. A class action was filed against Starbucks Corporation on behalf of 135,000 unsuccessful job applicants on the basis that the Starbucks application contains an ‘illegal question’ about prior marijuana convictions that are more than two years old.  The lawsuit was claiming $200 per applicant, which meant Starbucks was facing a potential exposure of $26 million dollars.

On the application form Starbucks asked, ‘Have you ever been convicted of a crime in the last seven (7) years?’ It then states, ‘Yes, list convictions that are a matter of public record (arrests are not convictions). A conviction will not necessarily disqualify you for employment.’

On the reverse side of the application, just before the signature line, Starbucks clarified the criminal question with a disclaimer that reflects protections afforded job applicants under California Labor Code sections 432.7 and 432.8:

CALIFORNIA APPLICANTS ONLY: Applicants may omit any conviction for the possession of marijuana (except for convictions for the possession 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 disclaimer however, was the very last sentence in a 346 word paragraph that went into other areas, including employment being at will, release of information, misrepresentations in the application and even disclaimers about Maryland and Massachusetts.

The plaintiffs were concerned that since the disclaimer was physically separated from the question about past crimes and was essentially buried in the fine print, those applicants either would overlook the disclaimer, or would not want to go back and cross out their previous responses, or ask for a clear copy.

The Court agreed that the there was an issue whether the ‘one-size-fits-all style’ of applications used was ambiguous or not.

However, the court also found that two of the plaintiffs in the case, in fact, were not harmed by any ambiguity since they both testified that they understood the question and had no drug history anyway.  Because there was no one suing that had actually been harmed, the Court ended the case in Starbucks favor.

The Court discussed how allowing these kinds of suits by plaintiffs that were not actually harmed would potentially  create a whole new category of employment-professional job seekers, whose quest is to voluntarily find (and fill out) job applications which they know to be defective solely for the purpose of pursing litigation.  This is not the law in California.

As a result of this case, a California employer should review their application form with their attorney or Human Resources for legal compliance.


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