Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Hawaii has long had a law limiting the discretion that employers have to consider older conviction records in making employment decisions. Effective September 15, 2020, SB 2193 prevents most private sector employers from considering felony convictions older than seven years, and misdemeanor convictions older than five years, excluding periods of incarceration..1 Hawaii shortened the 10-year lookback period “to reduce unnecessary employment discrimination against individuals with old and relatively minor conviction records, in furtherance of economic self-sufficiency, and to reduce crime and recidivism rates.”
The legislative findings for the amendment explain:
Even employers and human resource professionals with good intentions may be affected by unconscious biases and make adverse decisions against wholly qualified employees and prospective employees who have a ten-year-old record. Compounding this problem, background checks are often inaccurate, and can still show arrest and expunged records in conflict with what is currently allowed to be used under the existing statute. Accordingly, even individuals who have not been convicted of a crime or have had their records expunged may continue to face employment challenges as a result of the ten-year “lookback” period.
To account for the amendment, employers with operations in Hawaii should consider taking the following measures:
- Review and update post-offer, pre-employment questionnaires that ask job applicants to disclose prior felony or misdemeanor convictions.
- Review and update policies and procedures to reflect the shorter lookback period for consideration of felony or misdemeanor convictions.
- Consider training for personnel involved in the hiring process, particularly those tasked with adjudicating criminal background checks.
In addition to updates to these types of ban-the-box laws,2 employers also should continue to be mindful of continued developments regarding criminal record screening policies and Title VII of the Civil Rights Act of 19643 and the federal Fair Credit Reporting Act (FCRA).4 Efforts to help ensure compliance with the FCRA’s hyper-technical notice and disclosure requirements is especially important in order to mitigate against class action risks.
1 Relatedly, an employer may inquire about and consider an individual's criminal conviction record concerning hiring, termination, or the terms, conditions, or privileges of employment, provided that the conviction record bears a rational relationship to the duties and responsibilities of the position.
2 See Alison Hightower and Rod Fliegel, New Year, New Local Ban-the-Box Restrictions on Background Checks, Littler Insight (Feb. 12, 2020).
3 See Rod Fliegel and Molly Shah, Dollar General Reaches Settlement with the EEOC in Years-Long Background Check Bias Suit, Littler Insight (Nov. 1, 2019); Rod M. Fliegel and Julie A. Stockton, EEOC Continues to Scrutinize Criminal Record Screening Policies, Littler ASAP (Oct. 1, 2018).
4 See Rod M. Fliegel, Ninth Circuit Reinforces Prohibition Against “Extraneous” Information In Background Check Disclosures, Littler ASAP (Mar. 21, 2020); The Ninth Circuit Adopts an Expansive Reading of the FCRA’s Provision Governing Background Check Disclosures, Littler ASAP (Jan. 29, 2019).