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Employers Sued For Asking About Pot Use

Tresa Baldas, The National Law Journal, 30th July 2006

Job applicants in California don't have to worry about answering a certain question on applications anymore: Have you ever been arrested on a marijuana charge?

Individual class actions have forced more than 100 companies in California in recent years to omit questions on applications about arrests that did not result in a conviction as well as questions about marijuana convictions that are more than two years old, which popped up on a number of company applications.

The suits -- three of them are still pending -- cited a 30-year-old state law that forbids employers from inquiring about arrests records or information concerning a referral to a drug diversion program.

"The philosophy behind these laws is not to punish someone for making decisions when they were rather young," said Los Angeles attorney Mike Arias of Arias Ozzello & Gignac, who filed the suits against 108 companies, including big names like Starbucks, Abercrombie & Fitch, Staples and Macy's. The suits sought injunctive relief and damages for violating the statute. The statute allows for up to $500 in damages per violation.

The most recent suit was filed in January against the Arrowhead Pond of Anaheim arena in Anaheim, Calif., where the Mighty Ducks hockey team plays. Yeung v. Arrowhead Pond of Anaheim, No. 06 CC 00004 (Orange Co, Calif., Super. Ct.)

To date, all but three of the defendants -- Starbucks, Arrowhead Pond and Fry's Electronics -- have settled. The remaining three have changed their applications, but have not paid any damages.

Laws pertaining to what questions employers may ask of applicants vary from state to state.

For example, Wisconsin, California and Hawaii all generally prohibit employers from discriminating against an employee or applicant because of an arrest record. New York, however, has a law that specifically allows employers to consider pending criminal charges in making employment decisions.

At the federal level, the Equal Employment Opportunity Commission allows employers to use an arrest record as evidence of conduct when making an employment decision, but the policy states that "it is the conduct, not the arrest per se, which the employer may consider."

More recently, the EEOC has cautioned employers about asking applicants to disclose arrests that didn't lead to convictions because that could have a disparate, negative impact on the hiring of minorities.

According to Milton Friedman, a senior legal administrator who runs all the class actions at Arias Ozzello & Gignac, the California violations were discovered by three plaintiffs who were having no luck landing job interviews and eventually took some job applications to the firm for review.

"We were looking at these applications. Some were borderline iffy," Friedman said. "I was surprised myself that there were this many companies that actually had no idea that that was the law."

Gary McLaughlin of Akin Gump Strauss Hauer & Feld's Los Angeles office, who is representing Starbucks, was unavailable for comment.

Officials at the Arrowhead Pond of Anaheim were unavailable for comment.

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