McInerney: Fair Chance Act Five-Day Violation Still Required Proof of Resulting Harm

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Unpublished and nonprecedential: McInerney v. Regents of the University of California, No. B339467, may not be cited or relied on except as permitted by California Rule of Court 8.1115(b). The Second District affirmed judgment for UCLA on Fair Chance Act, retaliation, and failure-to-prevent claims. Although UCLA violated the statute by issuing its final hiring decision before the applicant received the full five business days to respond, the jury found the violation did not cause the claimed harm because UCLA would have reached the same result.

Conditional offer, background check, and abbreviated response period

The 65-year-old UCLA student applied for an office-assistant position and received a conditional offer subject to a background check. He worked intermittently for 23.5 hours while that check remained incomplete. UCLA later learned of several drug convictions from 2005 and 2007 and sent a January 5, 2022 preliminary notice allowing five business days to provide accuracy challenges, rehabilitation evidence, or mitigation.

The applicant did not submit rehabilitation evidence and instead sent combative emails to staff. UCLA notified him on January 7 that he was ineligible, before the five-business-day period expired. The trial court found that timing violated the Fair Chance Act, but submitted causation and harm to a jury. The jury found criminal history was not a substantial factor and that UCLA would have declined to hire him even if he had been allowed the full period.

Retaliation and failure-to-prevent claims failed earlier

The trial court summarily adjudicated retaliation and failure to prevent retaliation. The appellate court explained that FEHA retaliation requires protected activity, an adverse action, and causation. The applicant’s complaints did not adequately show opposition to conduct he reasonably and in good faith believed violated FEHA. The causation record also did not establish the necessary retaliatory link.

Because the underlying retaliation claim failed, the derivative failure-to-prevent theory also failed. The opinion distinguishes forceful workplace complaints from statutorily protected opposition: the content and reasonable belief about unlawful employment conduct matter, not simply the fact that an applicant objected to treatment.

Fair Chance procedure, assessment, and judicial review

The court described the statute as requiring procedures before conviction history becomes the basis for denying employment: “the statute requires certain procedures that must be followed before denying employment to an individual based on his conviction record.” McInerney, No. B339467, slip op. at 36 (Cal. Ct. App. Sept. 18, 2026) (unpublished). It upheld the conclusion that UCLA otherwise conducted the required individualized assessment and declined to second-guess the substantive outcome once the statutory assessment procedure was followed.

That discussion was also shaped by the jury’s finding that conviction history was not a substantial factor in the final decision. The opinion does not license categorical criminal-record exclusions; employers must still evaluate the statutory factors, issue required preliminary and final notices, allow the response period, and consider timely submitted evidence.

Why the procedural violation did not produce damages here

The panel held that the applicant had not shown error in requiring proof that the truncated response period caused harm. It relied on the ordinary rule that a civil plaintiff connects a wrongful act to injury and observed that the Fair Chance Act did not create specified statutory damages for this violation. Authorities involving standing, contract nominal damages, or backpay following other procedural violations did not establish automatic damages on this record.

The jury’s unchallenged special verdict supplied the dispositive causation finding: UCLA would have reached the same decision even if the applicant had submitted rehabilitation evidence during the full period. The court affirmed the judgment, with each side bearing its own appellate costs. The result is fact-bound and nonprecedential.

What this means in practice

• Employers should complete the individualized assessment, issue accurate preliminary notice, wait the full statutory response period, consider submitted evidence, and document the final decision.
• Applicants should use the response period to submit concrete accuracy, rehabilitation, or mitigation evidence rather than only objecting in general terms.
• A procedural violation and recoverable harm are separate questions; preserve evidence showing what a compliant process would have changed.
• Retaliation allegations should identify the protected activity, the decisionmaker’s knowledge, timing, and evidence connecting the activity to the adverse decision.

Related reading: Employment litigation practice; Employment claim deadlines; Retaliation and wage-claim guide.