California employers often involve counsel when deciding whether an applicant’s criminal history justifies withdrawing a conditional job offer. A newly published decision cautions that counsel’s involvement does not necessarily keep the resulting assessment from being disclosed.
In Civil Rights Department v. City of Torrance (https://www4.courts.ca.gov/opinions/documents/B352855.PDF), the California Court of Appeal held that an employer waived any attorney-client or work-product protection over its Fair Chance Act assessments when it relied on the adequacy of those assessments to defend its hiring decisions.
The decision does not make every lawyer-assisted hiring record discoverable. It does, however, make it difficult for an employer to defend its compliance by describing an individualized assessment while withholding the assessment itself.
The City’s hiring decision
The case began with an applicant for a City of Torrance custodian position. The City made a conditional offer and then reviewed his criminal history.
The applicant provided information about several convictions and evidence of rehabilitation. The City determined that most of the convictions were too old, had been dismissed, or were not sufficiently related to the position. It nevertheless withdrew the offer based on a more recent conviction for fighting in public.
In response to the applicant’s complaint, the City gave the California Civil Rights Department a narrative explanation of its decision. Specifically, the City told the CRD that it had conducted the individualized assessment required by the Fair Chance Act and that the recent conviction had a direct and adverse relationship with the duties of a custodian.
The CRD later expanded its inquiry into a broader investigation of the City’s treatment of applicants with criminal histories. It requested the City’s assessment templates, completed individualized assessments, and reassessments for applicants denied employment since January 2022.
The City acknowledged that responsive documents existed but withheld them. According to the City, its assessments were prepared with counsel and recorded legal advice from an assistant city attorney.
The privilege problem
The superior court ordered the City to produce the documents. The Court of Appeal affirmed.
The appellate court did not decide whether the documents were privileged when they were created. Instead, it held that the City had waived any applicable privilege by putting the adequacy of its assessments at issue.
The City had described its assessment as proof that it complied with the Fair Chance Act. The court concluded that the City could not use that assessment as a defense while preventing the CRD from examining how the assessment was performed.
The broader lesson is not limited to Fair Chance Act cases. When a party relies on a process, investigation, or document to establish a claim or defense, it should be prepared for the opposing party or regulator to seek the underlying material. Reliance does not always result in waiver, but it can place otherwise privileged material directly at issue.
The court was particularly concerned with the City’s practice of involving counsel in every criminal history assessment and then treating all resulting records as privileged. Allowing that approach could permit an employer to place an ordinary human resources function beyond regulatory review simply by assigning it to a lawyer.
The City also argued that the trial court should have examined each document separately. Its position was that even if privilege had been waived as to some materials, the court should preserve privilege for any documents that could be distinguished from the operational assessments placed at issue.
The appellate court rejected that argument because the City bore the burden of establishing privilege for the withheld documents but offered no meaningful basis for treating any of them differently. The City had withheld all documents reflecting its assessment and reassessment process under the same theory.
The opinion also noted that the City had declined to produce a privilege log and instead identified 23 applicants whose records had been withheld. The court did not impose sanctions for the missing log. The practical problem was evidentiary, not merely one of appearance. Without a document-specific log or another explanation distinguishing the records, the City could not carry its burden of showing why particular documents remained protected.
What the Fair Chance Act requires
California’s Fair Chance Act generally applies to public and private employers with five or more employees. It restricts when an employer may obtain and use an applicant’s conviction history.
An employer generally may not ask about or consider conviction history until after making a conditional offer. After the offer, the employer may conduct a criminal history check.
Some information remains off limits even after a conditional offer. An employer generally may not consider an arrest that did not result in a conviction. The law also restricts consideration of participation in diversion programs and convictions that have been sealed, dismissed, expunged, or otherwise eradicated.
Before withdrawing an offer based on a conviction that may lawfully be considered, the employer must make an individualized assessment of whether the conviction has a direct and adverse relationship with the specific duties of the position.
The assessment must consider the nature and gravity of the conduct, the time that has passed, and the nature of the job. If the employer preliminarily decides to withdraw the offer, it must provide written notice and an opportunity for the applicant to respond. The employer must consider the response before making a final decision.
Preparing an assessment for review
The decision favors a clear separation between the employer’s operational assessment and counsel’s legal advice.
Human resources should create an assessment that shows the required analysis without depending on privileged communications to supply its reasoning. The record should identify the conviction being considered, the relevant job duties, the time that has passed, the information submitted by the applicant, and the reason the employer believes the conviction has a direct and adverse relationship with the position.
Counsel can advise on the governing law, review procedures, and identify compliance risks. Separate legal communications may remain privileged depending on their purpose and whether the employer later places them at issue. Merely copying a lawyer or using a form prepared by counsel will not determine whether a document is protected.
Employers should also consider privilege strategy before responding to a CRD complaint. A detailed defense based on the adequacy of an individualized assessment may make that assessment discoverable. The employer should understand that possibility before presenting the assessment as proof of compliance.
If documents are withheld, the employer should maintain a privilege log that identifies the documents and explains the basis for the asserted protection. A blanket assertion makes it difficult to distinguish legal advice from the operational records used to make the hiring decision.
The Fair Chance Act requires more than a completed form. It requires a supportable connection between the applicant’s conviction history and the work the applicant would perform. If an employer relies on that analysis to defend its decision, the assessment may ultimately be reviewed by the CRD, opposing counsel, and a court.
Counsel’s involvement remains valuable, but the operational assessment should be able to withstand review on its own.
This article provides general information and does not constitute legal advice. The application of the Fair Chance Act and privilege doctrines depends on the facts of each matter.