KEY POINTS:
Job application forms have a fear factor for both employers and employees. For employees, owning up to that conviction or health condition, or even showing a poor understanding of grammar, can rule you out of a job. For employers, being too intrusive in seeking information about health conditions, or failing to comply with any one of a raft of legal obligations, can result in a discrimination (or other) claim.
The Times recently reported on a class action claim in California based on a Starbucks job application form. Californian law apparently prohibits employers asking about convictions for minor marijuana possession that are older than two years, failing which the person who is asked such a question is entitled to $200 compensation.
The report says Starbucks' application forms asked applicants whether they had any convictions in the previous seven years. There was apparently nothing limiting this in marijuana cases except for a disclaimer on the other side of the paper, in very small font and submerged in what the court found was "a veritable sea of boldface type" - where the form told applicants that minor marijuana convictions need not be disclosed.
Three applicants launched a $26 million class action suit, suing Starbucks on behalf of 135,000 people who had applied for jobs using the same form since June 2004. They argued that the part of the form saying they did not need to disclose marijuana convictions was too obscure and that their rights had been violated.
Their case was thrown out by an appeal court, on the basis that they had testified that they had understood when filling out the forms that they did not have to disclose marijuana convictions.
The court said it did not want to make a ruling that could create a whole new category of employment: professional job seekers whose quest is "to find (and fill out) job applications which they know to be defective solely for the purpose of pursuing litigation". It ruled that the law protecting people with old and minor marijuana convictions was not intended to be enforceable by "bounty hunters".
It reminds me of a case reported by the media in the UK some years ago, where an individual applied for large numbers of jobs with two CVs under different names, which were otherwise identical - except for the fact that the two CVs each listed a different ethnic origin for the "applicant". When one CV was eventually accepted and the other rejected, he would sue the employer concerned, and he racked up a number of claims in this way.
Some would say enterprising. I suspect most will think the Californian court's term "bounty hunters" is a better description.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
