Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

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Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts
©2018 (c) Liebert Cassidy Whitmore
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7. USE OF MARIJUANA CONVICTIONS THAT ARE MORE THAN TWO YEARS 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
LCW Practice Advisor 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
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