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7. U SE OF M ARIJUANA C ONVICTIONS THAT ARE M ORE THAN T WO Y EARS O LD Under Labor Code section 432.8, prospective employers are prohibited from considering marijuana related convictions which are more than two years old. Specifically, agencies may not consider marijuana related convictions for violations of subdivision (b) or (c) of Section 11357 of the Health and Safety Code or a statutory predecessor thereof, or subdivision (c) of Section 11360 of the Health and Safety Code, or Section 11364, 11365, or 11550 as they related to marijuana before January 1, 1976, or a statutory predecessor thereof.

In Starbucks v. Superior Court (Lords), 299 the appellate court reaffirmed that an employer may not, in any way, solicit information regarding marijuana convictions that are more than two years old. Starbucks had one application that it used in every state and overseas. The application included a question asking if the applicant had been convicted of a crime in the past seven years. The reverse side of the application included various disclaimers for different states, including a disclaimer from California stating that the applicant was not required to disclose marijuana convictions older than two years. The court held that the application violated Labor Code section 432.8. Although the disclaimer language was sufficient, its placement on the application was not clear and conspicuous enough to unambiguously direct applicants not to disclose such convictions

Employers should maintain maximum confidentiality of criminal offender record information (CORI), including responses that no criminal records exists. Sharing of such information infringes upon the applicant’s right to privacy. 300 Furthermore, criminal penalties may be imposed for the release of information to unauthorized individuals. 301

LCW Practice Advisor

Case Studies on Using Criminal Records:

El v. Southeastern Pennsylvania Transportation Authority. 302 Donald El, an African-American, applied for a position with King Paratransit Services as a paratransit driver for Southern Pennsylvania Transportation Authority (“SEPTA”). SEPTA had a policy that required that no driver have a record of any felony or misdemeanor conviction for any crime of moral turpitude or of violence against persons- no matter how much time had elapsed since the conviction. After conditionally hiring El, a criminal background check revealed that El had a 47-year-old conviction for second degree murder for an apparent gang related fight when El was fifteen years old. El had served three- and-a-half years for his crime and had no other convictions since that time.

El’s employment was terminated for the murder conviction. El filed a complaint with the EEOC alleging that the criminal conviction policy, as

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