Hawaiʻi Criminal Background Check Law: What Employers Need to Know

In September 2020, Hawaiʻi passed new legislation reducing the lookback period for criminal convictions and differentiating between felony and misdemeanor convictions.

For years, Hawaiʻi has led the nation in protecting applicants through strict criminal background check laws.

The Hawaiʻi 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 Hawaiʻi, 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 Hawaiʻi employer, it’s important that you discuss this subject with an HR professional or your legal representative. This ensures 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

Hawaiʻi’s 1998 Ban the Box law sparked a movement that later spread nationwide. Hawaiʻi 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.

Ban the Box legislation encourages employers to first consider a job candidate’s qualifications. Thorough evaluations are required before a decision is made to disqualify someone based solely on a person’s criminal record. Currently, 37 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. Hawaiʻi is one of 15 states that extends this type of law to private employers.

How to legally conduct a criminal background check

Hawaiʻi 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.

Timing

Inquiries into criminal history are possible, but only after the applicant receives a conditional offer of employment.

Exemptions

Hawaiʻi law exempts certain employers and expressly permits them to inquire into an individual’s criminal history for employment purposes. This includes schools, armed security providers, and financial and insurance institutions.

Resources

The Hawaiʻi Criminal Justice Data Center makes criminal history records available as public information. Employers may use a third-party provider of background check services; this is especially helpful if the check must cover other states or federal criminal history.

Limits and requirements

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. Apply criminal background checks 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 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.

• Double-check your job applications. Often, local employers will use universal, off-the-shelf application templates.  Take a moment to ensure applications and pre-employment screening interviews do not include prohibited questions about criminal convictions.

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 Hawaiʻi, 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 then withdraw the offer of employment.

The challenge of proving a “rational relationship”

Hawaiʻi 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” may seem obvious, such as an individual with a check forgery conviction applying for an accounting role, but in many situations, employers must evaluate the connection on a case‑by‑case basis, which can be difficult and costly depending on the facts.

It’s important employers review each situation 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.