An employer who is strategic and proactive in California wage and hour compliance can avoid hundreds of thousands of dollars in potential liabilities and defense costs. For example, there is significant litigation regarding employment applications in California especially the limitations regarding criminal convictions set forth at California Labor Code Section 432.7, et seq. and Section 432.8. Look at the course of events involving an employer’s employment application which failed to properly exclude inquiries regarding certain marijuana convictions more than 2 years old.

Three individuals brought a class action against Starbucks Corporation (“Starbucks”) alleging more than $26 million in statutory penalties on behalf of an estimated 135,000 job applicants based on Starbuck’s employment application. In Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436, the court held plaintiffs did not have standing to represent the proposed class because none had any marijuana convictions to disclose.

Subsequently, a court permitted plaintiffs to file a first amended complaint to include only job applicants with marijuana convictions and permitted class counsel to conduct further discovery to find a “suitable” class representative. Incredibly, Starbucks was ordered to review applications until it identified job applicants with prior marijuana convictions and then was ordered to disclose their names to class counsel. The employer appealed the discovery order. On April 25, 2011, the Fourth Appellate District Court reversed the discovery order since the order violates the “reform legislation the class action purports to enforce” – to avoid disclosure of certain marijuana convictions. See, Starbucks Corp. v. Super. Ct. (CA4/3 G043650 4/25/11)

In light of this chain of events, employers should consider being proactive and strategic by reviewing your employment application, forms and handbooks for California law.

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Photo of Jonathan A. Siegel Jonathan A. Siegel

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and…

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and counsel regarding labor and employment law with respect to various issues ranging from wage and hour law, reduction in force, WARN Act, discipline, leave management and harassment and discrimination issues. Mr. Siegel defends employers regarding different varieties of wrongful termination and discrimination claims.

Mr. Siegel has represented management in union organizing drives and regularly defends employers in unfair labor practice proceedings as well as in collective bargaining and arbitrations. He also has extensive experience conducting wage and hour preventive audits. He conducts single location and multi-location audits for employers. The scope of such audits can range from examining specific issues, i.e., exempt status under federal law and California, to comprehensive FLSA and California Labor Code audits. Mr. Siegel has conducted audits for a wide range of industries including, but not limited to manufacturing, retail, transportation, various service industries, defense contractors and healthcare.

Mr. Siegel regularly speaks on a variety of topics including wage and hour, harassment/discrimination, national and California employment trends, Workers’ Compensation, EEO, managing leaves of absence under FMLA and state leave laws and union avoidance. He has moderated numerous programs and is featured as a keynote speaker for several different organizations.