California employers responding to a Civil Rights Department (CRD) investigation should take care when explaining how they complied with the state’s Fair Chance Act. A newly published California Court of Appeal decision emphasizes that an employer’s response to CRD can potentially put otherwise privileged materials at issue.
In Civil Rights Department v. City of Torrance, the City provided CRD with a written narrative explaining how it had complied with its Fair Chance Act obligations in evaluating applicants’ criminal histories. When CRD later sought the underlying individualized assessments and related forms, the City withheld the documents based on attorney-client privilege and attorney work-product protections.
The Court of Appeal later affirmed an order requiring the City to produce the documents. The court concluded that by relying on its compliance with the Fair Chance Act as a defense, the City had put the adequacy of its individualized assessments at issue and waived its privilege claims as to those materials.
What Does it Mean?
The decision is an important reminder that involving legal counsel in a hiring or compliance process does not necessarily mean the underlying work will remain protected if the employer later relies on that work to defend its actions.
The Fair Chance Act generally prohibits covered employers from considering an applicant’s conviction history until after making a conditional offer of employment. Before withdrawing an offer based on conviction history, an employer must conduct an individualized assessment of whether the conviction has a direct and adverse relationship to the specific duties of the position.
As discussed here, employers should regularly audit their hiring practices, conduct required individualized assessments, provide compliant notices, and use checklists to help ensure Fair Chance Act requirements are consistently followed. The Civil Rights Department v. City of Torrance decision underscores an additional risk employers must keep in mind, which is that demonstrating compliance with Fair Chance Act obligations can come at the cost of privilege.
Consider the following when responding to a CRD inquiry:
- Separate ordinary hiring records from those seeking legal advice. Clearly distinguish documents used to conduct the hiring and individualized-assessment process from confidential communications seeking or providing legal advice.
- Preserve assessment records. Maintain individualized assessments, notices and related documentation consistent with your organization’s Fair Chance Act process.
- Keep agency responses factual and measured. Avoid unnecessary descriptions of legal counsel’s involvement, legal analysis or privileged compliance work when explaining the company’s actions.
- Conduct a privilege review before responding. Have legal counsel review the proposed response and supporting materials together to identify whether the employer is relying on privileged work to establish compliance and whether the response could put that work at issue.
Employers should carefully consider how they demonstrate Fair Chance Act compliance to the CRD. A factual, counsel-reviewed response can assist in lowering risk and establish compliance without inadvertently waiving attorney-client privilege.