Reported / Citable
Background
The Civil Rights Department (CRD) investigated whether the City of Torrance violated the Fair Chance Act (Government Code section 12952) when it rescinded a conditional job offer to Walter J., a custodial applicant, based on his criminal history. The Act prohibits employers with five or more employees from inquiring about conviction history before a conditional offer and requires an individualized assessment of whether the conviction has a direct and adverse relationship with the specific job duties before rescinding an offer. The assessment must consider the nature and gravity of the offense, the time passed since the offense, and the nature of the job. After Walter filed a complaint, Torrance responded to CRD with a detailed narrative explaining its compliance, describing its individualized assessment process, identifying the decision-makers, and concluding that its decision to revoke the offer was based solely on Walter's 2019 conviction for fighting in public and complied with section 12952.
CRD subsequently filed a director's complaint alleging that Torrance engaged in a pattern of disqualifying applicants based on certain crimes without performing adequate individualized assessments. CRD then filed a petition in the superior court for an order compelling compliance with its investigative requests for production, seeking individualized assessment templates, forms, instructions, and all documents related to assessments and reassessments of applicants denied employment due to criminal history since January 1, 2022. Torrance acknowledged possessing responsive documents but refused production, claiming attorney-client and work product privileges because the assessments were prepared with counsel. An assistant city attorney declared that the templates contained her legal conclusions and that HR employees documented her legal advice during the assessment process.
CRD petitioned the superior court to compel production, arguing the privilege claims were meritless because the dominant purpose of the assessments was an ordinary HR function, not legal advice, and that Torrance implicitly waived privilege by placing the adequacy of its assessments at issue. The superior court granted the petition, finding Torrance waived any privilege by raising the adequacy of its individualized assessments as a defense. Torrance appealed.
The Court’s Holding
The Court of Appeal affirmed, holding that the superior court did not abuse its discretion in finding Torrance waived any attorney-client or work product privilege. Applying the waiver doctrine from Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, the court reasoned that when an employer defends against a claim by asserting the adequacy of an investigation conducted by or with counsel, it puts the investigation directly at issue and cannot shield it behind privilege. Here, Torrance's detailed narrative to CRD explicitly concluded it 'complied with the requirements of section 12952' and described the individualized assessment process, the decision-makers, and the reasoning for rejecting Walter. By asserting statutory compliance as a defense, Torrance necessarily placed the adequacy of those assessments at issue.
The court rejected Torrance's argument that Wellpoint required a document-by-document review, noting that Torrance bore the burden of establishing the privilege and failed to show any basis for distinguishing among the withheld documents. The City conceded at oral argument that it withheld all documents reflecting the assessment and reassessment processes because all were prepared with counsel involvement. The court emphasized that allowing an employer to routinely involve counsel in Fair Chance Act decisions and then claim privilege would enable employers to avoid their statutory obligation to properly review criminal history records by delegating the task to in-house counsel. The court also found Torrance's claim that it never put the sufficiency of its assessments at issue irreconcilable with its assertion of statutory compliance, because compliance with section 12952 requires a reasoned, evidence-based determination under the governing regulation (Cal. Code Regs., tit. 2, § 11017.1, subd. (c)(1)).
The court declined to decide whether the documents were privileged in the first instance, finding the waiver issue dispositive. The superior court's order compelling production was affirmed, and CRD was awarded costs on appeal.
Key Takeaways
- An employer that asserts compliance with the Fair Chance Act as a defense to a CRD investigation waives attorney-client and work product privileges over the underlying individualized assessment documents.
- Routinely involving in-house counsel in the Fair Chance Act assessment process does not automatically render the resulting documents privileged if the dominant purpose is an ordinary human resources function.
- A party claiming privilege bears the burden of establishing the preliminary facts supporting the privilege and must show a basis for distinguishing among withheld documents; a blanket refusal to produce all assessment-related documents fails this burden.
- The waiver doctrine from Wellpoint applies to administrative investigations by CRD under the Fair Chance Act, preventing employers from shielding their decision-making process from scrutiny by delegating it to counsel.
- Compliance with Government Code section 12952 requires a reasoned, evidence-based individualized assessment considering specific statutory factors; merely going through the motions is insufficient.
Why It Matters
This decision reinforces the Fair Chance Act's enforcement mechanism by preventing employers from using privilege claims to obstruct CRD investigations into systemic compliance. It clarifies that asserting statutory compliance as an affirmative defense places the employer's entire assessment methodology at issue, triggering waiver of both attorney-client and work product protections. The ruling discourages the practice of routing routine HR decisions through counsel solely to create a privilege shield and ensures that CRD can access the actual records of individualized assessments to verify whether employers are conducting the reasoned, evidence-based analysis the law requires. The decision is particularly significant for public employers and large organizations that routinely involve legal counsel in employment decisions, as it limits the ability to claim privilege over operational compliance records.