HR Management & Compliance

Marijuana Disclaimer Must Be Crystal Clear, Court Rules

California law prohibits employers from asking job applicants about most marijuana-related convictions that are more than two years old. A new California appeals court decision, Starbucks v. Superior Court (Lords), highlights the fact that employers must be extremely clear with applicants that they are not seeking this barred info.

The case arose when Eric Lords and others applied for jobs at Starbucks. Starbucks uses the same boilerplate application for all locations, which includes a disclaimer stating:

CALIFORNIA APPLICANTS ONLY: Applicant may omit any convictions for the possession of marijuana (except for 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.

Lords and others filed a class action lawsuit against Starbucks, arguing that the disclaimer was buried in a long block of type, did not specifically refer to the “Have you been convicted of a crime in the last 7 years?” question asked earlier in the application, and was placed near the end of the job application.

The appeals court concluded there were no problems with the language of the California
disclaimer but “significant problems” with its placement.

Starbucks would have been okay, continued the court, if it had included the disclaimer immediately following the convictions question. But, instead, it put the disclaimer at the end of a 346-word paragraph, in the same chunk of text as disclaimers for the U.S., Maryland, and Massachusetts. The California disclaimer was in bold, but so was the rest of the paragraph, so “any value to be gained by emphasis is submerged in a
veritable sea of boldface type,” said the court.

We’ll have the full story on this case, and what it means for your job applications, in a future issue of CEA.

Don’t Get Caught Short

As this case illustrates, sometimes even following the letter of the law is not enough to keep you out of trouble. You need to know the nuances of how to apply it and what courts look for. Even better, of course, is knowing how to stay out of court in the first place.

CEA Online offers practical, problem-solving information that clarifies employment law requirements for California employers—our subscribers receive detailed coverage of the cases that matter (including this one), along with practical application tips and suggestions.

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