In September 2020, Hawaii passed new legislation reducing the lookback period for criminal convictions and differentiating between felony and misdemeanor convictions.
For years Hawaii’s criminal background check law has been among the most protective in the nation.
During its last session, the Hawaii legislature further narrowed the scope of what employers can consider regarding an employee’s criminal background.
This article provides an overview of key points to consider about criminal background checks for employment in Hawaii, including:
- The intent of “Ban the Box” legislation
- How to legally conduct a criminal background check
- EEOC guidance when criminal background is uncovered
- The “rational relationship” between criminal record and job duties
As a Hawaii employer, it’s important that you discuss this subject with an HR professional or your legal representative to ensure that you fully understand the limitations and stay in compliance. In the meantime, here are some things to keep in mind.
Ban the Box legislation intended to create opportunity
What started in Hawaii back in 1998 has since become a national movement. Hawaii became the first state to prohibit employers from asking job applicants if they have been convicted of a crime (HRS §378-2.5) to create opportunities for individuals, post-incarceration.
The movement is widely known as the Ban the Box campaign. Ban the Box refers to the checkbox on job applications that asks applicants if they have ever been convicted of a crime.
The purpose of Ban the Box legislation is to encourage employers to consider a job candidate’s qualifications first, before disqualifying someone based solely on a person’s criminal record. Currently, 33 states and over 150 cities and counties have adopted Ban the Box laws.
The federal government and many large corporations have voluntarily joined the movement as well. Hawaii is one of 14 states that extends this type of law to private employers.
How to legally conduct a criminal background check
Hawaii law prohibits discrimination based on an applicant’s criminal history. Employers may not discriminate in hiring, firing, compensation, or other terms of employment based on an applicant’s or employee’s arrest or court record.
Inquiries into criminal history can be made, but only after the applicant receives a conditional offer of employment. However, a number of employers are exempted from this law and “expressly permitted to inquire into an individual’s criminal history for employment purposes.” This includes schools, armed security providers, and financial and insurance institutions.
Hawaii criminal history records are public information available through the Hawaii Criminal Justice Data Center. Employers may also choose to go through a third-party provider of background check services; this is especially helpful if the check needs to cover other states or federal criminal history.
There are a few additional things to keep in mind when conducting a criminal background check for employment:
- Anti-discrimination laws apply to criminal background checks. As an employer, you cannot single out people from any legally protected category—including race, national origin, color, sex, religion, age, or sexual orientation—to undergo a criminal background check. Criminal background checks need to be applied fairly and consistently.
- Using a third-party service comes with additional compliance requirements. Businesses that sell background information on individuals are regulated as “consumer reporting agencies” and thus subject to the Fair Credit Reporting Act (FCRA). FCRA imposes strict obligations on employers who choose to conduct criminal background checks through these companies. These obligations include: a stand-alone notice to the candidate about the check; written permission from the candidate to conduct the background check; and written assurances to the reporting agency that the information will not be misused. In addition, employers must comply with the FCRA’s disclosure and notification requirements prior to taking any adverse action. (Source)
- Double-check your application.Often, local employers will use universal, off-the-shelf application templates, which may include questions about criminal convictions. Take a moment to ensure applications and pre-employment screening interviews do not include prohibited questions.
Guidance when a criminal background is uncovered
Employers who choose to conduct criminal background checks must consider the following before deciding whether that information disqualifies someone from employment: the type of offense, how serious it was, how long ago it was committed—in Hawaii, only felony convictions of the last seven years and misdemeanor convictions of the last five years may be considered, excluding incarceration time—as well as the nature of the job.
The U.S. Equal Opportunity Employment Commission (EEOC) requires employers to give applicants with a record an opportunity to explain the circumstances of their criminal history. Additionally, the EEOC publishes a lengthy document with guidance for employers. See, Consideration of Arrest and Conviction Records in Employment Decisions.
If the applicant does have a conviction record within the last seven years for felonies and five years for misdemeanors, excluding incarceration time, and the record has a “rational relationship” to the job duties and responsibilities, the employer may withdraw the offer of employment.
The challenge of proving a “rational relationship”
Hawaii employers—unless exempted—are prohibited from asking about criminal history until a conditional job offer is made. The offer may be withdrawn only if a conviction (not arrest) “bears a rational relationship to the duties and responsibilities of the position.” This “rational relationship” might seem obvious, such as an individual with a check forgery conviction applying to work in accounting, but in many cases, it can be difficult (and expensive) to prove, depending on the specific scenario.
In 2015, the Hawaii Supreme Court ruled against Hawaii Health Systems Corporation in a case brought by Zak Shimose, a radiological technician with a conviction for crystal methamphetamine possession with intent to distribute. His offer of employment at a Hilo hospital was rescinded after the conviction became known, but he took the case to court.
Lawyers for the employer argued that radiological technicians “have access to drugs, syringes, needles, and patient charts,” and work with vulnerable patient groups. However, the court was unable to find evidence that the defendant would have access to controlled substances or that there was any relationship between a drug conviction and abusive actions towards patients.
The takeaway for employers is to be sure to review each situation on a case-by-case basis—and discuss it with HR or legal professionals—before making adverse employment decisions based on information in a criminal history background check.
This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney, accountant or adviser before acting upon any information in this article.