How To Get A Criminal Background Check In Hawaii

criminal background checking in Hawaii law

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

For years Hawaii'south criminal background bank check law has been amongst 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 commodity provides an overview of key points to consider about criminal groundwork 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 chore duties

Every bit a Hawaii employer, information technology's of import that you discuss this subject field with an 60 minutes professional person or your legal representative to ensure that you fully understand the limitations and stay in compliance. In the meantime, here are some things to go along in listen.

Ban the Box legislation intended to create opportunity

What started in Hawaii back in 1998 has since become a national motion. Hawaii became the beginning state to prohibit employers from request job applicants if they accept been convicted of a crime (HRS §378-ii.5) to create opportunities for individuals, mail service-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'due south qualifications commencement, before disqualifying someone based solely on a person'due south criminal record. Currently, 33 states and over 150 cities and counties take adopted Ban the Box laws.

The federal authorities and many large corporations have voluntarily joined the movement as well. Hawaii is one of 14 states that extends this type of law to individual employers.

How to legally conduct a criminal groundwork check

Hawaii law prohibits bigotry based on an bidder'due south criminal history. Employers may not discriminate in hiring, firing, compensation, or other terms of employment based on an applicant'due south or employee'due south arrest or court record.

Inquiries into criminal historytin can be made, only only after the applicant receives a conditional offer of employment. However, a number of employers are exempted from this police force and "expressly permitted to ask into an individual'due south criminal history for employment purposes." This includes schools, armed security providers, and fiscal and insurance institutions.

Hawaii criminal history records are public information available through the Hawaii Criminal Justice Data Center. Employers may likewise choose to get through a 3rd-party provider of groundwork 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 cheque for employment:

Anti-discrimination laws use to criminal background checks. As an employer, you cannot single out people from whatever legally protected category—including race, national origin, color, sex, religion, age, or sexual orientation—to undergo a criminal background check. Criminal background checks demand to be applied fairly and consistently.
Using a third-party service comes with additional compliance requirements.Businesses that sell groundwork information on individuals are regulated equally "consumer reporting agencies" and thus discipline 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 acquit the background check; and written assurances to the reporting agency that the data will not be misused. In addition, employers must comply with the FCRA's disclosure and notification requirementsprior to taking any agin action. (Source)
Double-cheque your awarding.Often, local employers volition use universal, off-the-shelf application templates, which may include questions near criminal convictions. Accept a moment to ensure applications and pre-employment screening interviews exercise non include prohibited questions.

Guidance when a criminal groundwork is uncovered

Employers who cull to bear criminal background checks must consider the post-obit before deciding whether that information disqualifies someone from employment: the type of criminal 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 exist considered, excluding incarceration time—likewise as the nature of the job.

The U.South. Equal Opportunity Employment Committee (EEOC) requires employers to requite 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. Run into, Consideration of Arrest and Confidence Records in Employment Decisions.

If the applicant does have a confidence tape within the terminal seven years for felonies and five years for misdemeanors, excluding incarceration fourth dimension, and the tape 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 request about criminal history until a conditional job offer is made. The offer may be withdrawn just if a confidence (not arrest) "bears a rational human relationship to the duties and responsibilities of the position." This "rational human relationship" might seem obvious, such every bit an individual with a check forgery confidence applying to work in accounting, but in many cases, it tin 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 infirmary was rescinded subsequently the conviction became known, but he took the instance 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 notice prove that the defendant would take access to controlled substances or that in that location was any human relationship between a drug conviction and abusive deportment towards patients.

The takeaway for employers is to be sure to review each state of affairs on a example-past-case basis—and talk over it with 60 minutes or legal professionals—earlier making adverse employment decisions based on information in a criminal history background check.

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This article is for informational purposes only and does non establish legal advice. Readers should first consult their attorney, accountant or adviser earlier interim upon whatsoever information in this article.