The California Court of Appeal recently ruled on a case involving the City of Torrance and the state's Fair Chance Act, which affects how employers can consider criminal records when hiring. The court affirmed a lower court's decision that the City of Torrance had waived its claims of attorney-client privilege in a dispute with the state Civil Rights Department (CRD). This ruling could have significant implications for how employers handle job applications from individuals with criminal histories.

The case, Civil Rights Department v. City of Torrance (B352855), centers on whether the City violated the Fair Chance Act, which limits when employers can consider an applicant's criminal record. The CRD was investigating the City after a job applicant, Walter J., alleged that his job offer was rescinded due to his criminal history. This investigation led to the CRD requesting documents from Torrance related to its hiring practices.

The Fair Chance Act mandates that employers with five or more employees cannot inquire about an applicant's criminal history until after a conditional job offer is made. Even then, they cannot consider certain types of arrests or convictions unless they conduct an individualized assessment. This assessment must evaluate the nature of the offense, the time elapsed since the offense, and the relevance of the offense to the job in question.

Walter J. applied for a custodian position with Torrance and received a conditional job offer. However, after the City requested an explanation for his misdemeanor convictions, it ultimately rescinded the offer, citing concerns about his criminal history. Following this, the CRD launched an investigation into the City's compliance with the Fair Chance Act.

The CRD filed a petition in the Los Angeles County Superior Court to compel Torrance to produce documents related to its hiring practices. The City claimed that the documents were protected by attorney-client and work product privileges, arguing that they were created with legal counsel's input. However, the CRD contended that Torrance had waived these privileges by asserting that its individualized assessments complied with the law.

The Superior Court ruled in favor of the CRD, stating that Torrance had waived its claims of privilege by putting the adequacy of its assessments at issue in its defense. The City appealed this decision, leading to the recent ruling from the California Court of Appeal.

The court affirmed the lower court's decision, stating, "The City cannot demonstrate it complied with section 12952 without putting at issue the adequacy of the individualized assessments it conducted pursuant to that section." This means that by arguing its compliance, Torrance effectively waived any privilege regarding the documents related to its assessments.

The ruling emphasizes that employers cannot use attorney-client privilege to shield their hiring practices from scrutiny, particularly when they are being investigated for potential violations of employment law. The court noted that applying privilege in this context could allow employers to evade their responsibilities under the Fair Chance Act.

This ruling has broader implications for employers across California. It clarifies that if an employer claims to have followed the Fair Chance Act, it must be prepared to provide evidence of its compliance, including the documentation of its hiring assessments. Failure to do so could result in losing the protections typically afforded by attorney-client privilege.

The case also highlights the importance of individualized assessments in hiring practices. Employers must carefully evaluate criminal histories in relation to the specific job duties and provide applicants with the opportunity to respond to any concerns before making a final hiring decision.

As for what’s next, the City of Torrance could potentially seek further appeal, but details were not available in the court filing regarding any plans for additional legal action. The ruling sets a precedent that may influence how other employers approach hiring practices concerning applicants with criminal records.