Court of Appeal Rejects Employment Application Class Action

Several years ago, the wage and hour "flavor of the month" was the employment application. (Lately, it's been "suitable seating" and paycheck stubs). Plaintiffs filed a series of class actions usually attacking employment applications' conviction inquiries. In California, an applicant is not required to disclose misdemeanor marijuana possession convictions more than two years old, you know.

Starbucks was sued under this theory some years ago. But the Court of Appeal held in 2008 that the plaintiffs lacked standing to sue because they did not have marijuana convictions that would have had to have been disclosed.

In Starbucks I, supra, 168 Cal.App.4th 1436, we held that neither plaintiffs nor the tens of thousands of job applicants they purported to represent were entitled to recover statutory penalties where they did not have any marijuana convictions to disclose. We stated, "Only an individual with a marijuana-related conviction falls within the class of people the Legislature sought to protect." (Id. Id. at p. 1451.)

After the appeal, the trial court dismissed the named plaintiffs as lacking "standing" to sue. The plaintiffs' lawyers, though, attempted to substitute new plainitffs to continue the class action. They also limited the complaint and class to those applicants with applicable convictions.  Then, they asked the trial court to compel Starbucks to review its own applications and identify to the plaintiffs' counsel anyone who filled out an application more than two years after incurring a marijuana-related conviction. (I don't know how Starbucks would know this).  Starbucks appealed this discovery order, too.

The court of appeal held that the plaintiffs were not entitled to the discovery. The court noted that California law protects the privacy of individuals with stale marijuana convictions. The plaintiffs wanted to invade that privacy to find a new plaintiff. But the court noted that there did not seem to be any interest in pursuing this class action among the potential 135,000 applicants to Starbucks during the relevant period, despite the prior published opinion.  So, the court denied discovery and let the superior court take the next step, to dismiss the class action (most likely).

The case is Starbucks v. Superior Court and the opinion is here.