Hawaii Ban the Box Update Effective September 15, 2020 – SB2193

September 21st, 2020 | Ryan Hannan, Compliance Associate

On September 15, 2020, Hawaii Governor David Ige, signed SB 2193 (the “Amendments”) to amend section §378-2.5 of the Hawaii Revised Statutes to further limit lookback periods for convictions which employers may consider in employment decisions.

Previously, under Hawaii’s original Ban the Box law, Hawaii employers were permitted to inquire about and consider convictions up to ten years old (excluding periods of incarceration) if they have a rational relationship to the duties and responsibilities of the position in question. The Amendments reduce the lookback period to seven years for felony convictions, and five years for misdemeanor convictions. The Amendments took effect immediately upon the Governor’s signature.

Hawaii employers should review their hiring and background screening policies and practices for compliance with the Amendments. Criminal history self-disclosures and questionnaires may need to be update or modified.

Sterling clients who would like to modify their screening program in light of the new requirements or inquire about what options are available to assist them in meeting these requirements, should contact their account representative.

Other limitations contained in HRS §378-2.5 remain. As such, employers are still permitted to inquire about and consider an individual’s conviction history only after a conditional offer has been made and may only consider convictions if they have a rational relationship to the position sought. The statute includes exceptions for employers who are permitted to inquire into and/or consider an individual’s conviction history pursuant to 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 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 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 of an airport in the United States pursuant to title 49 United States Code section 44936(a)
  • The department of human services pursuant to sections 346-97 and 352-5.5
  • The public library system pursuant to section 302A‑601.5
  • The department of public safety pursuant to section 353C-5
  • The board of directors of a cooperative housing corporation or the manager of a cooperative housing project pursuant to section 421I-12
  • The board of directors of an association under chapter 514B, or the managing agent or resident manager of a condominium pursuant to section 514B-133
  • The department of health pursuant to section 321‑15.2. [am L 2017, c 181, §14][1]

The Amendments were in response to concerns that ten years was too long, thereby contributing to opportunities for bias and discrimination in hiring decisions as well as the risk of inaccuracies. The full text of the Amendments can be found here.

[1] A Bill for an Act Relating to Employment Discrimination, SB No. 2193 H.D. 2, 30th Legislature (HI. 2020)

The information contained herein is for informational purposes only.  Clients are encouraged to consult with their legal counsel on the impact of this new law.  Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice.

This and other important legislative updates can be found on the Sterling website: https://www.sterlingcheck.com/resources/compliance-updates/

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.