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
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