When 69-year-old Theodore DeJung was rejected for a full-time commissioner position for the Sonoma County Superior Court in favor of a person 26 years his junior, Mr. DeJung sued the court for age discrimination in violation of the Fair Employment and Housing Act.  The Superior Court moved for summary judgment contending that the superior court enjoyed discretionary immunity against suits for employment discrimination under the FEHA when selecting candidates for commissioner positions.  The trial court agreed.

The appellate court, however, reversed the trial court’s decision finding that governmental discretionary immunity does not apply to employment discrimination actions under FEHA against public entities as employers.

The Tort Claims Act sets forth specific public employee immunities.  Government Code Section 820.2, sometimes referred to as the “discretionary act immunity,” states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

Government Code Section 815.2(b) states: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

The question was whether the discretionary act immunity for public employees, when read together with Section 815.2(b), provided the superior court “as an entity” with immunity from FEHA claims based on the discretionary acts of its judiciary in selecting appointees for commissioner positions.

Because the FEHA defines the term “employer” as including “the state or any political or civil subdivision of the state, and cities ….” the court believed the Legislature intended to subject public entities to liability for violations of FEHA.  Therefore, it was a “clear indication of legislative intent that Section 820.2 and Section 815.2(b) immunity be withdrawn.”

Sayar Fausto, LLP
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Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.

This is something every HR Manager or Hiring Manager should be able to answer.  The Fourth Appellate District for the State of California provided some useful hints regarding questions on employment applications regarding marijuana use.  See Starbucks Corporation v. Superior Court of Orange County, No. G039700 (4th App. Distr., December 10, 2008).

Labor Code Section 432.7 limits the information employers can seek from applicants regarding arrests and convictions.

No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program.

Any person who violates this law is subject to a $200 penalty or actual damages, whichever is greater. If the violation is intenional, the penalty increases to $500 and is a misdemeanor.

Labor Code Section 432.8 (added in 1976) adds to the list of prohibited inquires any question regarding a conviction related to marijuana use two years from the date of conviction.  In other words, employers cannot ask about marijuana convictions occuring in the last two years.  Many standard employment applications ask about convictions.  Period.  In California, at least, the applications should exclude marijuana convictions unless the convictions occured in the last two years.

In Starbucks v. Superior Court, Starbucks was sued because an applicant who had not smoked marijuana and did not indicate he smoked marijuana did not get hired.  He brought a lawsuit purportedly on behalf of those prospective employers who DID have marijuana convictions.  The court through out the case because the plaintiff did not have standing.  Since he did not have a marijuana conviction, he did not need to worry about the question on the application.

The court went on to provide some useful advice.  While Starbucks had a disclaimer indicating applicants did not need to disclose marijuana convictions in the last two years, the disclaimer was buried “at the very end
of a 346-word paragraph, with a U.S. disclaimer, followed by a host of irrelevant provisions from states like Maryland and Massachusetts.”  The court had no problem with the language of the California disclaimer, but felt the placement was flawed.  The court held, “Had Starbucks included
the California disclaimer immediately following the convictions question, Starbucks would have been entitled to a summary judgment in its favor on the reasonableness of the employment application.”

What does this mean for California employers?  First, make sure your employment application and hiring managers do not ask about marijuana convictions in the last two years.  Second, if the employment application asks about convictions, make sure to include a disclaimer immediately following the convictions question clearly indicating applicants do not need to disclose marijuana convictions occuring within the last two years.

Finally, if you have not trained your managers regarding appropriate interview techniques, consider conducting an in-house training by a qualified professional.

Sayar Fausto, LLP
350 Second St. Suite 5
Los Altos, CA 94022
Tel: (650) 948-6114
Fax: (650) 947-0770

Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.

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