Calif. Employers Face Suit Over "Pot Use" Question on Job Applications

July 28, 2006 ( - California job applicants may not have to disclose whether they have ever been arrested on a marijuana charge on employment applications.

The decision on what employers can ask regarding job applications falls under state jurisdiction, including whether companies are allowed to ask applicants about past criminal charges.

According to the National Law Journal, the debate concerning the “marijuana question” has been highlighted by class action suits that have forced more than 100 companies in the state to dump questions about arrests that did not end in conviction, as well as marijuana arrests that are more than two years old

The debate also brings up the issue of whether a person should be castigated for decisions they made when they were young, said Mike Arias, an attorney who filed the suits against 108 companies, including Starbucks, Abercrombie & Fitch, Staples and Macy’s.

Three suits have not been settled and hinge on a 30-year-old state law that bars employers from asking about arrest records or information about an employee’s referral to drug treatment plans. All of the other suits have settled except Starbucks, Arrowhead Pond and Fry’s Electronics, which have all changed their applications but have not paid out any money.

The journal reported that the suits want injunctive relief and damages for violating the statute, which allows for up to $500 in damages per violation.

Regarding how employers can view arrests at a federal level, the Equal Opportunity Commission’s stance is that “it is the conduct, not the arrest per se, which the employer may consider.”