Although Starbucks has been the target of numerous class action lawsuits in the U.S., the company defeated plaintiffs in one recent class action arising out of the criminal background question in its job application. The application asked: “Have you been convicted of a crime in the last seven (7) years? If Yes, list convictions that are a matter of public records (arrests are not convictions). A conviction will not necessarily disqualify you for employment.” On a separate page, the application contained disclaimers for various states, including one for California, which provided: “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.” Plaintiffs, a group of rejected applicants, alleged that the criminal history question was unlawful. A California court of appeal found that the disclaimer was lawful, but that its placement on the application was troubling. Had Starbucks included the California disclaimer immediately following the convictions question, the court would have upheld the dismissal of the lawsuit on that ground alone. Instead, the court dismissed the lawsuit on the grounds that, of the four plaintiffs, two admitted in discovery that they understood Starbucks was not seeking information about proscribed marijuana-related offenses, and none had any marijuana-related convictions to disclose. The court may have ruled differently had one or more of the applicants possessed a different understanding and/or disclosed such convictions because of confusion over the form. Employers are urged to compare their application language regarding convictions with that approved by the court, and to place the disclaimer on the same page as the conviction inquiry.
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