UPDATE: Employer Not Required To Go Through Job Applications To Identify Potential Class Members For Class Action Filed Against It

In Starbucks Corporation v. The Superior Court of Orange County, (— Cal.Rptr.3d —-, Cal. App. 4 Dist., April 25, 2011), a court of appeal considered whether a trial court erred when it ordered an employer to review approximately 135,000 job applications until it found applicants who could be suitable representatives for a class action that alleged the employer had improperly asked about minor marijuana convictions that were more than two years old. The court of appeal held the trial court abused its discretion when it ordered the employer to provide information regarding potential class members.


Pursuant to California law, employers are prohibited from asking on their job applications about minor marijuana convictions that are more than two years old. An employer who violates this provision is subject to a penalty of up to $200 per aggrieved applicant. Three individuals brought a class lawsuit against Starbucks Corporation (“Starbucks”) on behalf of approximately 135,000 job applicants alleging that the preprinted job application used by Starbucks violates a marijuana reform legislation provision which prohibits employers from asking about minor marijuana convictions that are more than two years old. The court of appeal ultimately held that the three plaintiffs “did not have standing to represent the proposed class because none had any marijuana convictions to reveal.”

The trial court dismissed the three plaintiffs from the lawsuit but allowed the complaint to be amended to include only job applicants with marijuana convictions. The complaint filed by the attorneys, however, did not include a class representative who had a marijuana conviction. The attorneys sought to compel Starbucks to identify all job applicants who had filled out applications more than two years after a conviction for a minor marijuana offense. The court ordered “Starbucks to review its 135,000 or so job applications in random batches of 25 applicants until it found 25 applicants who submitted a Starbucks job application more than two years after receiving a marijuana conviction.”


The court of appeal reversed the decision of the trial court. The court opined, “By providing for the disclosure of job applicants with minor marijuana convictions, the discovery order ironically violates the very marijuana reform legislation the class action purports to enforce.” The court stated, “We fail to understand how destroying applicants’ statutory privacy rights can serve to protect them.”

The attorneys seeking to pursue the class action failed to find a suitable class representative after five years of litigation. Despite the publication of the previous opinion finding that the three original plaintiffs did not have standing, “not a single person has stepped forward who fits within the statutory criteria.” The attorneys instead have asked Starbucks to do their work for them and to search through job applicants to find applicants with marijuana convictions.

The marijuana reform legislation does not just require information regarding minor marijuana convictions to be sealed but for “timely destruction” and “permanent obliteration” of the records. The legislation also prohibits both public and private employers “‘from seek[ing] from any source whatsoever’ any records pertaining to minor marijuana convictions sustained by job applicants or employees.” The records “are to be accorded the highest level of privacy.”

The court found that the order requiring Starbucks to search the job applications for potential class members will harm the privacy rights of potential class members. Accordingly, the court of appeal reversed the trial court’s order directing Starbucks to search the job applications. The court however refused to adopt a blanket rule against “headless class discovery.”


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