By Pamela Q. Devata and Jennifer L. Mora
Seyfarth Synopsis: On September 15, 2020, Hawaii Governor David Y. Ige signed Senate Bill 051, which narrows the scope of convictions that employers can use for hiring and other employment-related decisions. The new law is effective immediately.
In 1998, Hawaii became the first state to “ban the box,” prohibiting a private employer from inquiring about a job applicant’s criminal history until the employer has made a conditional offer of employment. Up until now, the state also made it unlawful for an employer to consider an applicant or employee’s conviction record unless the record was less than 10 years old, excluding periods of incarceration. And, those records can only disqualify a person from employment if the employer can show the record has a “rational relationship” to the duties and responsibilities of the position in question.
This year, however, the state legislature noted that this 10-year lookback period “may continue to facilitate employment discrimination against individuals who have a criminal history, but who have long since paid their debt to society and pose little to no risk to an employer or the public.” Thus, the legislature determined it appropriate to shorten 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.”
To this end, effective September 15, 2020, employers in Hawaii now may only consider felony convictions that occurred in the most recent seven years and misdemeanor convictions that occurred in the most recent five years (both excluding any periods of incarceration). The law still requires employers to allow applicants or employees to present documentary evidence of their date of release from incarceration if they disagree with the period of incarceration reported to the employer. Importantly, the record still must bear a “rational relationship” to the job in question in order to be disqualifying.
The law contains numerous exceptions, including for certain schools, healthcare institutions, financial institutions, insurance institutions, and many others.
Employers located in Hawaii should ensure that their screening and other hiring practices comply with the amended law immediately. Employers also should continue to be mindful of other laws regulating criminal records checks and screening policies, including state and local employment and ban-the-box laws and the growing body of laws restricting employer use of credit reports and other credit history information in hiring and other employment decisions. Moreover, given that we continue to see class actions filed against employers over the Fair Credit Reporting Act’s hyper-technical requirements, employers also would be well-advised to review and adit their disclosure and authorization forms and stay abreast of legal updates in this area of the law.