Hawaii Tightens 'Ban-the-Box' Law

Hawaii has narrowed the scope of what employers can consider regarding an individual's conviction history when making employment decisions.

Hawaii employers have long been required to limit their consideration of felony and misdemeanor convictions to a 10-year lookback period, unless they fell within one of the statutory exemptions as part of its longstanding "ban-the-box" legislation.

State law has further required employers to apply a "rational-relationship" test before denying a prospective or current employee a position following a background check, which means an employer may only consider those convictions occurring in the permissible time period if there is a rational relationship between the convicted crime and the prospective job.

The Hawaii legislature has taken further steps to narrow the scope of what employers can consider regarding an individual's conviction history. The concern was that, without further change, the rational-relationship test would still be ripe for subjectivity, creating a potential for inconsistent application due to express or unconscious bias, which can result in discrimination against a person who has long since paid their debt to society and who poses little to no risk to the employer or to the public.

Consequently, on Sept. 15, the governor of Hawaii signed into law Act 051 (20), amending Hawaii Revised Statutes Section 378-2.5 by reducing the lookback period and differentiating between felonies and misdemeanors. The intent was to minimize any possible conscious or unconscious bias that arises when an employer views an old crime when making employment decisions.

Felonies older than seven years and misdemeanors older than five years are no longer relevant toward job suitability determinations, unless they fall within one of the existing 18 statutory exemptions for certain occupations, e.g., Department of Education employees.

Even with these distinctions and limited lookbacks, employers must still apply the rational-relationship test when making employment decisions. Additionally, the suitability determination with respect to relevant criminal history may only occur after the applicant has received a conditional job offer.

If an employer has extended a conditional job offer to an applicant or offered a current employee a promotion and the person's background check reveals a criminal history for a Hawaii-based position, seek legal counsel to review any potential exposure, if applicable, arising out of the reduced lookback period and application of the rational-relationship test before denying employment.

Richard I. Greenberg is an attorney with Jackson Lewis in New York City. Andrew L. Pepper and Nicole K. Hudspeth are attorneys with Jackson Lewis in Honolulu. © 2020 Jackson Lewis. All rights reserved. Reposted with permission.