MOFD Pays $97,500 Settlement to Job Applicant in Fair Chance Act Violation


    In one of the largest settlements in state history under the Fair Chance Act, Moraga-Orinda Fire District (MOFD) paid $97,500 to an applicant whose job offer was rescinded due to her criminal record.
    “The settlement is the result of an investigation and mediation initiated by California Civil Rights Department (CRD) as the result of a complaint filed earlier this year by an individual who had sought employment at the Moraga-Orinda Fire Protection District,” as stated in the CRD’s Aug. 29 press release.
    Last year, the plaintiff, whose name is withheld, applied for the fire inspector/plans organizer position with MOFD. Selected from a field of 22 candidates, she received the job offer Sept. 8, 2022. It was rescinded 30 days later, because part of the job encompasses “peace officer” duties, according to MOFD District Counsel Jon Holtzman, and “her crimes made it inappropriate to employ her…”
    MOFD Human Resources staff failed to give the plaintiff an opportunity to engage in a procedural element, the interactive process that would enable her to explain or protest their decision.
    Holtzman, who has represented MOFD for the last six years, said $7500 was paid from MOFD’s general fund and the balance was covered by insurance.
    The Fair Chance Act, enacted Jan. 1, 2018, generally prohibits employers with five or more employees from asking about one’s conviction history before making a job offer.
    Holtzman said the district has no issue with the framework of the Fair Chance Act, but it does take issue with the job applicant’s criminal record in regard to the position for which she was offered.
    “Whether an individual with a criminal record is appropriate for a particular position depends on the nature of the position, the nature and seriousness of the crimes and the length of time which has passed,” he said.
    There are many duties to the fire inspector/plans organizer job, and “one of them is to conduct inspections and issue citations,” Holtzman said. “It qualifies as a peace officer under state law, but oddly, unlike police peace officers, it is not excluded from the Fair Chance Act.”
    “The legislature may not have been aware fire departments have peace officer positions and the same policy reasons that justify the exemption of police officers, justify exempting fire peace officers,” said Holtzman. “The District is considering whether to advance corrective state legislation.”
    The plaintiff was sentenced for crimes of negligence, not malice, which arose from an accident almost two decades ago, according to her attorney, Morgan Yang. The Richmond resident served just over five years and participated in the Conservation (Fire) Camp Program while incarcerated.
    “MOFD’s position that a person found guilty of two counts of gross vehicular manslaughter, which the state determined is not eligible for expungement, is not an appropriate hire for a peace officer position. It was not challenged by the state nor was it part of the settlement,” said Holtzman.
    Yang said her client’s convictions were two counts arising from the same accident.
    Regarding the plaintiff’s convictions Yang said, “The obligations on the employer apply regardless of what the underlying convictions are.”
    After receiving the ‘green light’ from an HR representative Sept. 28, the plaintiff submitted her resignation to her employer. Her first day with MOFD was to be Monday, Oct. 10.
    On Friday Oct. 7, she received a Conviction Information Questionnaire which she completed and returned to HR, noting she was in the process of getting the convictions expunged. According to Yang, she used, “the wrong terminology and meant to say pardon, not expungement.”
    “Saturday morning my client was told the offer was being rescinded,” said Yang. “She asked the HR representative if she could speak with someone about the matter. The HR representative responded only that, ‘There is not any further information we have for you at this time.’”
    “The plaintiff incorrectly asserted the convictions were in the process of being expunged. In fact, she had sought to have them expunged and the request was denied,” said Holtzman.
    According to Yang, no decision has been made about the pardon for her client.  
     Ultimately, the decision to settle was mediated between CRD and MOFD.
    “Although the state disagreed with a procedural element of MOFD’s compliance in the interactive process, we do not agree with the state’s position. It was a no fault settlement,” said Holtzman. “The settlement was accepted, in part, because it is far less than the potential litigation cost, even if MOFD were to prevail.
    “The District stands by its decision not to employ this individual based upon the specific job at issue and the specifics of the plaintiff’s record. However, the failure to complete the interactive process was due to the necessity of reaching a decision in a matter of hours after the discovery of the plaintiff’s record prior to the plaintiff leaving her previous employment.”
    The plaintiff’s final day on her previous job was Friday, Oct. 7, one day before the MOFD job offer was rescinded.
    The plaintiff incurred financial hardship due to the job offer withdrawal.
    “My client lost income due to the rescinded job offer,” said Yang. “I note that this was at the time when she and her partner just welcomed a baby into their family six months earlier. This, of course, exacerbated the stress of the financial impact.”
    After receiving notice of the settlement, Yang said her client “felt a sense of relief in being able to put this painful chapter behind her and focus on her path forward and finding new employment. She hopes her case increases awareness of the Fair Chance Act among individuals with a criminal history, so they know their rights when looking for employment.”
    Yang also sees this case as an educational one.
    “We hope this demonstrates this is something employers need to take seriously and educate their management and human resource professionals on, as there can be serious financial consequences if they don’t,” said Yang. “The Fair Chance Act is an important tool to prevent discrimination in employment and we applaud individuals, like our client, who have the courage to pursue these types of claims.”
    MOFD is now fully aware of the law’s provisions and has procedures in place to ensure there are no future violations.
    “General counsel provides legal updates as appropriate,” said Holtzman. “Human resource employees also attend trainings provided by outside contractors and associations.
    Holtzman added, “The Moraga-Orinda Fire Protection District is committed to providing public safety services, treating all job applicants fairly and in compliance with the law, and ensuring our peace officer positions are appropriately staffed.”
    The California Civil Rights Department published a newly launched Fair Chance Act Interactive Guide, which aims to help people understand their rights under the law:

Charleen Earley can be reached at

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