A California Court of Appeal recently ruled that employers retain discretion to evaluate an applicant's criminal history under the California Fair Chance Act (CFCA), provided they follow the required procedures. The Court also held that a procedural violation does not automatically entitle an applicant to damages and confirmed that employers are not categorically prohibited from considering convictions more than seven years old.
Background
In 2021, the plaintiff applied for an office assistant position at UCLA's Graduate Student Resource Center. The position involved regular interaction with students and other members of the campus community. UCLA extended a conditional offer of employment, subject to a background check.
The background check revealed that the plaintiff had four drug-related convictions dating back to 2005 and 2007, including convictions for possession of controlled substances and possession for sale.
UCLA reviewed the convictions in connection with the responsibilities of the position and determined that they raised concerns about the plaintiff's suitability for the job. On January 5, 2022, UCLA notified the plaintiff that his criminal history could disqualify him from employment and advised him that he had five business days to submit additional information, including evidence of rehabilitation or mitigating circumstances.
However, UCLA informed the plaintiff just two days later, on January 7, 2022, that he was ineligible for the position, before the required response period had expired. During that period, the plaintiff had sent communications that UCLA characterized as hostile and unprofessional.
The plaintiff sued, alleging that UCLA violated the CFCA by improperly evaluating his criminal history, considering convictions more than seven years old, and failing to provide the full statutory response period.
The trial court determined that UCLA had complied with the CFCA's individualized assessment requirements but violated the statute by prematurely ending the plaintiff's opportunity to respond. The remaining issue of whether that violation caused the plaintiff harm proceeded to trial.
The jury found that the plaintiff's criminal history was not a substantial factor in UCLA's decision and that UCLA would have declined to hire him even if he had submitted additional evidence of rehabilitation during the full response period. The plaintiff appealed, and the Court of Appeal affirmed the judgment in UCLA's favor.
California's Fair Chance Act Requirements
The CFCA, which became effective in 2018, is codified in Government Code section 12952. It generally applies to employers with five or more employees and establishes restrictions on when and how employers may consider criminal conviction information during the hiring process.
Under the statute, employers generally must wait until after extending a conditional offer of employment before requesting or reviewing an applicant's conviction history.
If an employer is considering withdrawing a conditional offer because of an applicant's convictions, it must first complete an individualized assessment. That assessment requires consideration of the seriousness and nature of the offense, the amount of time that has elapsed since the offense or completion of the sentence, and the responsibilities of the position.
An employer that preliminarily determines an applicant should be disqualified must provide written notice identifying the conviction or convictions at issue and explaining the applicant's right to respond. The applicant must receive at least five business days to provide information challenging the accuracy of the criminal history or demonstrating rehabilitation or mitigating circumstances, subject to applicable extensions.
The employer must evaluate any timely information received before reaching a final decision. If the employer ultimately withdraws the offer, it must provide a final written notice containing the information required by the statute.
The California Civil Rights Department (CRD) has devoted substantial enforcement attention to these requirements. As a result, employers have faced increasing scrutiny over both the procedures used to evaluate criminal histories and the reasons underlying adverse hiring decisions.
Courts Cannot Substitute Their Judgment for an Employer's Individualized Assessment
One of the principal issues before the Court of Appeal was whether an applicant could challenge the substance of an employer's individualized assessment by arguing that the convictions did not warrant disqualification from the position.
The Court determined that the CFCA requires employers to undertake an individualized assessment but does not empower a court or jury to independently decide whether the employer reached the correct conclusion.
In reaching this determination, the Court examined the statutory language and legislative history, distinguishing the obligation to conduct an assessment from a requirement that the resulting hiring decision satisfy an independently enforceable substantive standard.
The Court explained that the Legislature could have imposed a more restrictive standard governing when convictions justify denying employment, as other states have done. Instead, California's statute focuses on ensuring that employers consider specified factors and provide applicants with an opportunity to address potentially disqualifying information.
Accordingly, while courts may examine whether an employer performed the assessment and followed the required procedures, the CFCA does not authorize them to overturn a hiring decision merely because they would have weighed the applicant's criminal history differently.
This distinction is particularly important because it preserves employers' ability to exercise business judgment when evaluating an applicant's qualifications and suitability for a particular position.
However, the decision does not exempt employers from the statute's procedural requirements or insulate hiring decisions from separate claims of unlawful discrimination.
UCLA Violated the Five-Day Response Requirement, But the Violation Did Not Establish Damages
The Court also considered the consequences of UCLA's failure to provide the plaintiff with the full five-business-day period to respond to its preliminary disqualification notice.
Although UCLA's January 5 notice stated that the plaintiff had five business days to submit additional information, UCLA notified him on January 7 that he would not be hired. The trial court determined that this constituted a violation of the CFCA.
The plaintiff argued that the denial of a statutorily guaranteed opportunity to respond was itself sufficient to support a damages award, regardless of whether the additional time would have changed UCLA's hiring decision.
The Court of Appeal disagreed.
The Court explained that a plaintiff pursuing damages for a statutory violation generally must establish that the violation caused a legally cognizable injury. The CFCA does not provide automatic monetary damages whenever an employer fails to satisfy one of its procedural requirements.
The jury's findings were particularly significant. Although UCLA did not establish that the plaintiff would have failed to submit rehabilitation evidence if given the full response period, the jury concluded that UCLA would have made the same decision even if the plaintiff had provided that information.
The jury also determined that the plaintiff's criminal history was not a substantial factor in UCLA's ultimate decision not to hire him. UCLA had presented evidence that the plaintiff's communications during the hiring process, rather than his convictions alone, influenced its decision.
Because the evidence supported the conclusion that providing the additional response time would not have changed the outcome, the plaintiff could not establish the causal connection necessary to recover damages.
The Court therefore upheld the judgment in UCLA's favor, notwithstanding its failure to comply with the five-business-day requirement.
The ruling provides an important distinction for employers: a failure to follow the CFCA's procedures may constitute a statutory violation, but a plaintiff seeking damages must still demonstrate that the violation caused harm.
Convictions More Than Seven Years Old Are Not Automatically Excluded
The plaintiff separately challenged UCLA's consideration of convictions that occurred approximately 14 to 16 years before the hiring decision.
The Court rejected the argument that the CFCA imposes a seven-year cutoff for criminal convictions. Unlike certain consumer reporting restrictions, the CFCA does not establish a blanket prohibition against evaluating convictions based solely on their age.
Nevertheless, the passage of time remains an important part of the individualized assessment. Employers must consider how long ago the offense occurred and whether the conviction remains relevant to the responsibilities of the position.
Older convictions may also create additional legal concerns under California's Fair Employment and Housing Act and federal antidiscrimination laws.
In particular, where an applicant establishes that a criminal history screening practice has an unlawful disparate impact on a protected group, reliance on convictions more than seven years old may trigger a rebuttable presumption under California regulations that the exclusion is not job-related and consistent with business necessity.
Employers should therefore avoid treating the Court's ruling as unrestricted authority to rely on decades-old convictions. The absence of a categorical prohibition under the CFCA does not eliminate the need to evaluate the relevance of those convictions or comply with other applicable legal requirements.
Practical Considerations for Employers
The decision provides useful clarification regarding the CFCA's limits, particularly for employers facing claims that an individualized assessment reached an unreasonable conclusion or that a technical procedural deficiency automatically warrants damages.
However, the outcome should not diminish the importance of maintaining a consistent and legally compliant background screening process.
Employers should ensure that hiring personnel understand when criminal history inquiries are permitted and that individualized assessments are completed before preliminary decisions to withdraw conditional offers. Those assessments should address the statutory factors and be documented to establish that the required evaluation occurred.
The five-business-day response period also warrants particular attention. As this case demonstrates, providing a compliant preliminary notice is not sufficient if an employer makes its final decision before the applicant's opportunity to respond has expired. Employers should implement procedures to track response deadlines and prevent premature adverse action.
Employers should also maintain documentation identifying the considerations underlying their hiring decisions, particularly when factors unrelated to an applicant's convictions influence the outcome. Such records may become important if an applicant later alleges that a procedural defect affected the hiring decision.
The decision does not displace additional obligations imposed by local fair chance hiring ordinances, including those applicable in the City of Los Angeles, Los Angeles County, San Diego County, and San Francisco.
Further, employers using third-party background screening companies must comply with applicable federal and California consumer reporting laws, including the Fair Credit Reporting Act (FCRA) and California's Investigative Consumer Reporting Agencies Act (ICRAA). Those laws impose independent requirements that may carry separate remedies and liability risks.
McInerney v. Regents of the University of California (California Court of Appeal, Second District, filed September 18, 2026; certified for publication October 13, 2026).
Takeaway
McInerney v. Regents of the University of California clarifies that the CFCA regulates the procedures employers must follow when evaluating an applicant's criminal history but does not permit courts or juries to replace an employer's judgment with their own when reviewing an individualized assessment.
The decision also confirms that an applicant cannot recover damages based solely on a procedural violation without demonstrating resulting harm. Notably, UCLA prevailed despite failing to provide the required five-business-day response period because the jury found that the additional time would not have changed its hiring decision.
While the ruling preserves meaningful discretion for employers, that discretion must be exercised within the CFCA's procedural framework and in compliance with other applicable employment laws.
Employers should continue to carefully document individualized assessments, provide applicants with the full opportunity to respond, and ensure that criminal background screening practices comply with state and local requirements.
For questions regarding this topic or other employment law matters, contact us at Eanet, PC.
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About the Author
Matthew L. Eanet, Esq.
Matt is managing shareholder at Eanet, PC, a Los Angeles litigation boutique he founded in 2012. He's an expert in complex commercial litigation matters involving real estate, employment, trade secret, trademark and trade dress, data breach, privacy and general business disputes, served as a U.S. Army JAG prosecutor, and has been selected by Super Lawyers (California) every year from 2015-2026.
Reviewed October 2026