Job Applicants Who Had No Prior Marijuana-Related Convictions Could Not Recover Statutory Penalty From Potential Employer Who Allegedly Asked Prohibited Question On Job Application

In Starbucks Corporation v. Superior Court of Orange County, (— Cal.Rptr.3d —, Cal.App.4 Dist., Dec. 10, 2008), a California Court of Appeal considered whether job applicants who had no prior marijuana-related convictions were barred from proceeding with their lawsuit against an employer who on its job application allegedly asked an illegal question about marijuana convictions occurring more than two years ago. The Court of Appeal held that although the application may have failed to comply with the law, the job applicants are not entitled to recover because (1) the applicants read and understood that the application did not require them to disclose marijuana convictions more than two years old, and (2) the applicants had no prior marijuana-related convictions.


Eric Lords, Hon Yeung, and Donald Brown each applied for a job at Starbucks Corporation in early 2005. None of these applicants had a prior marijuana conviction or arrest. Starbucks did not hire any of these applicants. The job application filled out by the three applicants was a standard application used by Starbucks nationwide. On the first page, the application asks, “Have you been convicted of a crime in the last seven (7) years?” If the applicant answers yes to this question, the application tells the applicant to list the convictions that are a matter of public record. The second page of the application contains various disclaimers for United States applicants as well as applicants applying in Maryland, Massachusetts, and California. The disclaimers are located in a paragraph that is 346 words long and the California disclaimer is the last one listed in the paragraph. The California disclaimer provides “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, Yeung, and Brown filed a class action lawsuit on behalf of themselves and 135,000 Starbucks job applicants who sought employment in California alleging that the convictions question on the application is illegal under California law because the disclaimer regarding marijuana convictions is buried in a block of type placed near the end of the document. However, Lords and Yeung admitted that they read the disclaimer and understood that they were not required to disclose information regarding marijuana convictions more than two years old.

The trial court certified a class of all Starbucks applicants in California who submitted an application since June 23, 2004. Starbucks filed a motion for summary judgment. The trial court found there was a question of fact as to whether the California disclaimer is sufficient to alert a reasonable job applicant that the criminal convictions question on the application does not apply to marijuana-related convictions more than two years old. Starbucks filed a petition for a writ of mandate from the trial court’s order denying its motion for summary judgment.


Labor Code sections 432.7 and 432.8 prohibit employers from asking about arrests that did not result in a conviction and marijuana convictions that are more than two years old. Plaintiffs who are aggrieved by a violation of these sections may recover actual damages or $200, whichever is greater. Starbucks asserts that its employment application complies with California law because it expressly tells applicants not to disclose convictions for possession of marijuana that are more than two years old.

The Court of Appeal stated that it did not see a problem with the language of Starbuck’s California disclaimer, but it did see a problem with the placement of the disclaimer. “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.” The court held that it could not conclude “as a matter of law, that the Starbucks application unambiguously directs applicants not to disclose prohibited marijuana-related convictions.” A reasonable applicant could look at the question asking whether he or she has been convicted of a crime in the last seven years and answer the question honestly without noticing the disclaimer on the second page of the application. “Truthful applicants . . . should be able to recover their actual damages or the statutory minimum, either because they were forced to reveal stigmatizing private information, or because they declined to respond with such information at a possible cost of a lost job opportunity.”

The court, however, found that Lords, Yeung, Brown, and the class of applicants they sought to represent cannot recover damages. First, even though the California disclaimer may have been ambiguous, it was not actually ambiguous as to the plaintiffs in this lawsuit. Lords and Yeung admitted that they read the disclaimer and understood that they were not required to disclose information regarding marijuana convictions more than two years old. There was no evidence submitted to the court that either Lords or Yeung believed that they were being asked by Starbucks to disclose the prohibited information. Second, because Lords, Yeung, and Brown had no marijuana convictions to disclose, they were not members of the group intended to be protected by the statute. These plaintiffs “lost neither money nor property as a result of Starbucks allegedly unlawful conduct.” The court concluded that “[o]nly an individual with a marijuana-related conviction falls within the class of people the Legislature sought to protect.”

The court stated, “If the legislators who enacted the marijuana reform legislation in the mid-1970’s intended to confer a right to automatic damages upon all job applicants, regardless of actual injury, we doubt they would have been so opaque in their draftsmanship.” Accordingly, the court issued a writ mandating the trial court to issue an order granting Starbuck’s motion for summary judgment.


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