On September 15, 2020, the State of Hawaii passed a bill to amend their existing Ban the Box legislation which prohibits most employers from considering felony convictions beyond seven (7) years, and misdemeanor convictions beyond five (5) years, excluding periods of incarceration.
Key Takeaways
- This law revises the current look back period for employers to consider criminal convictions from ten (10) years to seven (7) years for felonies, and five (5) years for misdemeanors, excluding periods of incarceration.
- Prohibits employers from inquiring about an individual’s past conviction records for more than seven (7) years for felony convictions, and five (5) years for misdemeanor convictions, excluding periods of incarceration.
- Prohibits employers from inquiring about past conviction records, until after a conditional offer of employment has been extended.
Who is impacted by this Ordinance?
This law applies to most employers in the State of Hawaii.
Are there any exceptions?
Yes, this law shall not apply to employers who are expressly permitted to inquire into an individual’s criminal history for employment purposes pursuant to any federal or state law including:
- The State or any of its branches, political subdivisions, or agencies pursuant to sections 78-2.7 and 831-3.1;
- The department of education pursuant to section 16 302A-601.5;
- The department of health with respect to employees, providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services pursuant to section 321-171.5;
- The judiciary pursuant to section 571-34;
- The counties pursuant to section 846-2. 7 (b) (5), (33), (34), (35), (36), and (38);
- Armed security services pursuant to section 261-17(b);
- Providers of a developmental disabilities domiciliary home pursuant to section 321-15.2;
- Private schools pursuant to sections 302C-1 and 378-3 (8);
- Financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution pursuant to section 378-3(9);
- Detective agencies and security guard agencies pursuant to sections 463-6(b) and 463-8(b);
- Employers in the business of insurance pursuant to 15 section 431:2-201.3;
- Employers of individuals or supervisors of individuals responsible for screening passengers or property under title 49 United States Code section 44901 or individuals with unescorted access to an aircraft of an air carrier or foreign carrier or in a secured area
Are there any penalties?
A complaint may be made by an applicant to the state of Hawaii Human Rights Commission.
Recommendations
- We recommend employers review and update their pre-employment questionnaires to align with this bill, and only inquire into an applicant’s past criminal history after a conditional offer of employment has been extended.
- Hawaii employers should review and update employment policies and procedures to reflect the new look back period.
- We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.
Contact Accurate Background
For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page.
*Please note: Accurate prepared these materials for informational purposes only. These materials are not intended to be comprehensive, and are not a substitute for, and should not be construed as, legal advice. Accurate does not warrant any statements in these materials. Employers should direct questions involving their organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply, to their own legal counsel.