Metropolitan News-Enterprise


Thursday, December 11, 2008


Page 1


Court Tosses Starbucks’ Applicants Suit Over Marijuana Question




The Fourth District Court of Appeal yesterday threw out a $26 million class action by applicants for Starbucks Corporation jobs who claimed the company illegally asked them about prior convictions related to marijuana possession.

The panel granted a writ of mandate directing that summary judgment be entered in favor of the company. Justice Raymond Ikola said the three men who brought the suit should not be allowed to represent a class of more than 130,000 applicants because their own claims were invalid.

Eric Lords, Hon Yeung, and Donald Brown brought suit under a Labor Code provision that prohibits prospective employers from inquiring about marijuana-related convictions that are more than two years old.

California employers have, for many years, been prohibited from asking job applicants about arrests not resulting in convictions. Sec. 432.8, which extended that prohibition to most marijuana-related convictions after two years, was enacted in the 1970s along with legislation minimizing penalties for possessing small amounts of the drug.

An applicant who is subjected to an inquiry in violation of the section is entitled to actual damages or $200, whichever is greater, and the plaintiffs sought the minimum recovery on behalf of each member of the class.

Disclaimer Section

Starbucks noted that the standard application form completed by the plaintiffs included a disclaimer section, immediately following the portion of the form by which the  applicant authorizes the company to investigate his or her background.

The disclaimer section, in addition to advising all U.S. applicants that their employment is terminable at will, and all Maryland and Massachusetts applicants that they cannot be forced to take a lie detector test, informs those seeking to work in California that:

“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.”

Following discovery, Starbucks moved for summary judgment, noting that none of the three plaintiffs had ever been convicted of a marijuana-related offense, and that Lords had truthfully stated as such on the application form, while the other plaintiffs had refused to answer the question. Starbucks also noted that none of the plaintiffs claimed that the company’s decision not to hire him was related to the use or non-use of marijuana or to his answer or non-answer to the question.

‘Buried’ in Type

The company also argued that the disclaimer precluded liability. The plaintiffs responded that the disclaimer was “buried within a block of type,” did not specifically refer to the convictions question in a different section of the application, and was placed at the end of the document, so that applicants would likely have already answered the question before seeing it and would not want to go back and erase or cross out an answer.

Orange Superior Court Judge David Velasquez certified a class made up of all California applicants who were asked the convictions question since June 23, 2004, saying “the mere offering of the application containing the impermissible question” violated the statute and subjected the company to the minimum liability to each class member.

The judge also denied summary judgment on the ground that triable issues existed as to whether the location of the disclaimer and the eight-point font size in which it was printed were adequate to place each applicant on notice that they did not have to answer the question.

Starbucks petitioned for writ of mandate, saying it lacked an adequate remedy in the trial court because the huge potential judgment might force it to settle. The Court of Appeal agreed to hear the merits and granted a stay.

Ikola, writing for the Court of Appeal, said there were “significant problems” with placement of the disclaimer, since it appeared well after the question “Have you been convicted of a crime in the last seven (7) years?”

The justice explained:

“The unintended consequence of Starbucks’ one-size-fits-all style for its employment applications is a lack of clarity for which California law strives.  We cannot say, as a matter of law, that the Starbucks application unambiguously directs applicants not to disclose prohibited marijuana-related convictions.”

The plaintiffs, however, cannot recover damages and cannot represent the class, Ikola went on to say, because none had been convicted of a marijuana-related offense and all three of them understood that they could not be required to disclose any such convictions had they occurred.

California law, the justice explained, does not allow a job applicant to recover damages for the asking of an impermissible question when the applicant actually understood that he or she had no legal obligation to answer. To rule otherwise, the jurist said, “could create a whose 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 pursuing litigation.”

Ikola went on to say that the plaintiffs were not “aggrieved” because they “do not all within the class of persons intended to be protected by the marijuana reform legislation.” Nothing in the legislative scheme, the jurist said, indicates that lawmakers intended that it be enforceable by “bounty hunters” as opposed to persons who had actually suffered a minor marijuana conviction and were unlawfully asked to disclose it.

Rex S. Heinke, Catherine A. Conway and Jessica M. Weisel of Akin Gump Strauss Hauer & Feld represented Starbucks on appeal; H. Scott Leviant, Mike Arias, Mikael Stahle and Jason E. Barsanti of Arias Ozzello & Gignac represented the defendants.

The case is Starbucks Corporation v. Superior Court (Lords), G039700.


Copyright 2008, Metropolitan News Company