California’s Fair Chance Act When a Job Offer Is Pulled Over a Conviction

A California Court of Appeal decision published on October 13, 2026 limits what a job applicant can challenge when an employer withdraws a conditional offer because of a criminal conviction. The court held that California’s Fair Chance Act, Government Code § 12952, sets a procedure employers must follow. It does not let a court or jury second-guess the employer’s conclusion that a conviction disqualifies the applicant. The case is McInerney v. Regents of the University of California (B339467), decided by the Second District on September 18, 2026.

The procedure itself is still enforceable, and the ruling makes one step of it carry more weight than before. An employer that is considering pulling an offer must give the applicant written notice and at least five business days to respond with evidence of rehabilitation, mitigating circumstances, or errors in the record. The Fair Chance Act requires the employer to consider that response before its decision becomes final, and after this ruling it is the applicant’s main opportunity to change the outcome.

What the Fair Chance Act Requires Before an Offer Is Withdrawn

The Fair Chance Act applies to employers with five or more employees. An individualized assessment is the employer’s review of whether an applicant’s conviction history has a direct and adverse relationship with the specific duties of the job. The employer must weigh the nature and gravity of the offense, the time since the offense and the sentence, and the nature of the job. Section 12952 sets out the following sequence:

• Before the offer: no question about conviction history on the application and no inquiry into it until a conditional offer is made.
• Off-limits records: arrests not followed by conviction, diversion programs, and convictions that were sealed, dismissed, or expunged may not be considered, with narrow exceptions.
• Individualized assessment: required before denying the job solely or in part because of a conviction.
• Preliminary notice: written notice naming the disqualifying conviction, with a copy of any conviction history report and an explanation of the right to respond.
• Response period: at least five business days, plus five more if the applicant disputes the report’s accuracy in writing and is taking specific steps to get evidence.
• Final notice: written notice of the final decision, any reconsideration procedure, and the right to file a complaint with the Civil Rights Department.

The law does not apply to positions where another law requires a background check or restricts hiring based on criminal history, to criminal justice agency positions, or to farm labor contractor positions.

Why the Court Required Proof of Harm From a Shortened Response Window

The applicant in McInerney received a conditional offer for an office assistant job at UCLA and worked part time for several weeks while his background check was pending. The university sent its preliminary notice on January 5, 2022 and told him two days later that he was ineligible, before his five business days had run. He sent angry emails instead of evidence of rehabilitation. The trial court found that cutting the response period short violated the statute, and a jury then found that UCLA would have made the same decision even with the full five days.

The Court of Appeal affirmed. It held that an applicant must prove the procedural violation caused actual harm, and it noted that the Legislature attached no fixed damages amount to the Fair Chance Act. The court contrasted the background-check reporting statute, Civil Code § 1786.50, which sets a $10,000 minimum recovery for certain violations. The court also held that the emails were not protected opposition under FEHA, since they did not show a reasonable belief that UCLA was doing anything unlawful. Nothing in FEHA, the court noted, bars an employer from relying on a conviction that is 14 years old once the Act’s procedure is followed.

A shortened response window can still support a claim where the applicant had rehabilitation evidence ready and the employer’s decision might have changed. The Nourmand Law Firm, APC looks first at the dates on the employer’s notices when it reviews a withdrawn offer for an applicant in the Inland Empire, the Central Valley, or elsewhere in California.

How to Respond to a Fair Chance Act Notice

An applicant who receives a preliminary notice should answer in writing before the deadline. Useful documents include program completion records, employment references, and proof that the report is wrong. Keep a copy of everything sent. An employer that asked about convictions before making an offer, relied on a sealed or dismissed record, or skipped the notice steps may still have violated the Act. The Nourmand Law Firm, APC represents job applicants and employees across California in failure-to-hire and Fair Chance Act claims, and it does not represent employers. Call The Nourmand Law Firm, APC at 800-700-WAGE (9243) or contact the firm online for a free consultation. Cases are handled on a no recovery, no fee basis.