Sonnenschein Labor and Employment Law Alert

July 7, 2003

Are Your Job Applications Compliant with California Law?

Most employers with nationwide operations utilize the same job application in all of the states in which they operate. A typical provision on such job applications asks if the applicant has ever been convicted of a crime and requests that the applicant provide the details of any such convictions.

Recently, a class action lawsuit was filed in Los Angeles Superior Court against over 100 California employers, including many national retailers and restaurants with California operations, alleging that each defendant utilized employment applications that improperly inquired of applicants' prior criminal convictions for certain marijuana related offenses that were more than 2 years old and/or their participation in or referral to pre- or post-trial diversion programs in violation of the California Labor Code, Sections 432.7 and 432.8. The complaint also asserts a claim under California's Business and Professions Code, Section 17200. The lawsuit is brought on behalf of all persons who completed employment applications with the defendants in the last year. The complaint seeks to establish a sub-class of job applicants for each of the defendants. In addition to the recovery of attorneys' fees and costs, damages available under the Labor Code sections include, for each violation, the greater of actual damages or $200, or the greater of $500 for each willful violation or triple actual damages.

In order to avoid being the target of similar lawsuits in the future, we recommend that all employers doing business in California take steps to bring the applications they use in California into compliance with the California Labor Code, in the following manner:

California Labor Code Section 432.7

To comply with section 432.7, delete from your applications any question regarding probation, deferred sentences, or any other pretrial or post-trial diversion program. If you wish to use one application for all of your locations nationwide and to continue to ask about probation and deferred sentences in states where it is legal to do so, simply note on your application that this particular question is not applicable to applicants in California.

California Labor Code Section 432.8

Section 432.8 prohibits asking applicants about convictions that are more than two years old for possession of marijuana (other than concentrated cannabis), possession of paraphernalia for using marijuana, and presence in a location where marijuana is being used. Though few employers ask specifically about convictions for marijuana, most ask about convictions generally, and so complying with section 432.8 is a matter of crafting a proper exclusion from the definition of "crime." How specific that exclusion should be depends upon how much you care about marijuana convictions that are over two years old.

If an applicant's prior marijuana conviction over two years old is unimportant to your business, you can craft an exclusion that is technically more conservative than the law requires, but easier to read and understand, such as: "In California, 'crime' excludes any conviction more than 2 years old for a marijuana-related offense."

If, however, you would prefer to be informed of any marijuana-related conviction about which the law entitles you to ask, tracking the language of the statute on your application is advisable. For instance: "In California, 'crime' shall exclude convictions for marijuana-related offenses that are more than two years old, as defined in California Health and Safety Code sections 11357 (b) and (c) and 11360(c), or in California Health and Safety Code sections 11364, 11365, or 11550 of the Health and Safety Code as they related to marijuana prior to January 1, 1976, or their statutory predecessors."

Recognize that California is one of many states that has specific statutory restrictions concerning whether and to what extent an employer may inquire about an applicant's prior criminal history. This class action lawsuit provides ample reason to ensure that your job application is consistent with the law in each of the states in which your company operates.

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