A California employer may discover an applicant’s criminal convictions after making a conditional job offer. That discovery does not automatically authorize the employer to withdraw the offer. Government Code section 12952, commonly known as the Fair Chance Act, requires a defined process before certain conviction histories can be used to disqualify an applicant.
In McInerney v. Regents of the University of California (2026) B339467, the Court of Appeal examined what that process requires, what a court may review, and what happens when an employer makes a procedural mistake. The opinion was filed September 18, 2026, and certified for publication October 13, 2026.
A conditional offer and an old criminal record
John McInerney applied for an office assistant position at UCLA’s Graduate Student Resource Center in 2021. The work involved assisting students, answering inquiries, and supporting campus events. UCLA made a conditional offer, subject to a satisfactory background check, and allowed him to perform some work provisionally while the check was pending.
The background check later disclosed drug-related convictions from 2005 and 2007, including convictions involving possession for sale. UCLA reviewed the convictions against the responsibilities of a position involving regular contact with students. On January 5, 2022, the university sent a preliminary notice explaining that the convictions might disqualify him. The notice gave him five business days to challenge the report or submit evidence of rehabilitation or mitigating circumstances.
McInerney sent several confrontational emails to university personnel but did not provide substantive rehabilitation or mitigation evidence. On January 7, just two days after the notice, UCLA advised him that he was ineligible for the position.
That timing was a problem. The statute required UCLA to leave the response period open for at least five business days before reaching a final decision.
What the Fair Chance Act requires
For covered employers and positions, the Fair Chance Act generally prohibits inquiries into or consideration of conviction history until after a conditional offer of employment. If a background check reveals a conviction that may affect the offer, the employer must make an individualized assessment of whether that history has a direct and adverse relationship with the particular duties of the job.
The assessment must consider the nature and gravity of the offense or conduct, the time elapsed since the offense and completion of the sentence, and the nature of the position. The employer is not required by section 12952 to put the results of that assessment in writing, although keeping a reliable internal record may be useful if the decision is later challenged.
If the employer preliminarily decides to withdraw the offer because of conviction history, it must give the applicant the required notice and opportunity to respond. The response may address errors in the background report, rehabilitation, or mitigating circumstances. Section 12952 provides at least five business days for the initial response, with additional timing rules potentially applying when the applicant disputes the accuracy of the record. The employer must consider information submitted before making a final decision and provide the required final written notice if it denies the position based in whole or in part on conviction history.
The law contains exceptions and interacts with other restrictions on criminal-history information. Employers should evaluate the position and applicable law before applying a uniform background-check policy.
Did UCLA perform an individualized assessment?
McInerney argued that UCLA’s assessment was defective. Among other things, he pointed to an incomplete internal form and emails seeking a written job description shortly before the final decision. The trial court granted summary adjudication against him on this issue, and the Court of Appeal affirmed.
UCLA personnel testified that they considered the nature of his convictions, their age, and the duties of the office assistant position. The court concluded that McInerney had not presented substantial evidence creating a triable dispute over whether the required assessment actually occurred. The statute did not require the assessor to consult a particular written job description, interview the prospective supervisor, or complete a particular internal memorandum.
The court also rejected McInerney’s request that a court or jury independently decide whether UCLA reached the correct substantive conclusion about the relationship between his convictions and the job. As the opinion interpreted section 12952, the provision requires the employer to undertake the specified individualized assessment; it does not invite a court to replace that assessment with its own hiring judgment simply because the applicant disputes the outcome.
That holding should be read in context. It does not permit a blanket exclusion based on a category of convictions or excuse an employer from conducting the required assessment. Other discrimination laws and restrictions on the use of conviction information may also apply.
The five-business-day violation and the jury’s verdict
The trial court found that UCLA had failed to provide the full statutory response period. The remaining issue was whether that failure caused the injury McInerney claimed. The case went to a jury on causation and related factual questions.
The jury found that McInerney’s conviction history was not a substantial factor in UCLA’s decision and that the university would have made the same hiring decision even if he had been given the full response period and submitted rehabilitation evidence. The Court of Appeal upheld the judgment in UCLA’s favor.
The result does not mean an employer may shorten the statutory deadline without consequence. The court addressed whether this plaintiff had shown compensable harm from the violation on the record presented. A different applicant might have material evidence to submit, and an early rejection could affect the outcome. Employers should not rely on a later causation defense as a substitute for compliance.
The separate retaliation claims
McInerney also asserted retaliation and failure-to-prevent-retaliation claims under the Fair Employment and Housing Act. Those claims were summarily adjudicated against him. The Court of Appeal agreed that his communications did not establish protected opposition to conduct he reasonably believed unlawful under FEHA. The record also supported UCLA’s legitimate explanation for its decision, including his communications with staff and failure to provide substantive responsive information. The retaliation analysis was separate from the established violation of the five-business-day requirement.
What employers should take from the decision
An employer considering withdrawal of a conditional offer should identify the actual job duties before evaluating a conviction, make the required individualized assessment, and give the applicant a meaningful opportunity to respond. Human resources personnel should track the statutory response deadline and avoid issuing a final rejection while it remains open. Any information submitted should be considered before the final notice is sent.
For an applicant challenging a decision, the record matters just as much. Evidence of what the applicant would have submitted during the required period, and how that information could have affected the decision, may be central to a damages claim arising from an abbreviated response period.
McInerney is a significant published interpretation of the Fair Chance Act’s procedural framework. Its holding is tied to the evidence presented, including the jury’s causation findings. It should not be treated as permission to bypass statutory safeguards or as a blanket rule that every conviction-based refusal to hire is lawful.
For businesses assessing background-check policies or responding to employment litigation, the sequence of notices, assessments, and final decisions can be decisive. Elpis Law represents clients in California business and employment-related disputes. Contact the firm for a conflict check before sharing confidential details about a specific matter.
Legal Authorities
- McInerney v. Regents of the University of California (Cal. Ct. App., 2d Dist., Div. 2, Sept. 18, 2026, B339467), certified for publication Oct. 13, 2026 — official opinion
- California Government Code § 12952, subds. (a), (b), (c) (Fair Chance Act) — official text
- California Government Code § 12940, subds. (h), (k) — official text
Related practice areas: Executive and Employment-Related Disputes · Business and Commercial Litigation