Navigating the Line: What Hawaii Employers Can and Canít Do With Criminal Background Checks

Hawaii was the first state to enact what has come to be known as “Ban the Box” legislation.[1]  “Ban the box” refers to the elimination of the checkbox on job applications asking applicants whether they have ever been convicted of a crime.  The impetus behind such legislation is to ensure employers consider applicants’ qualifications as opposed to automatically excluding them based on their criminal records.  Legislation to assist individuals post-incarceration has been gaining in popularity, and in December 2018, President Trump signed into law the First Step Act (“Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act”), which aims to provide programs to help reduce recidivism, including reintegrating individuals back into the workforce after incarceration.

Employers must walk the line between giving individuals with a criminal record a second chance by fairly evaluating them based on their qualifications and protecting themselves against negligent hiring or negligent retention claims.  This article aims to help employers navigate the line by discussing:

  • When can Hawaii employers inquire about and consider criminal records?
  • EEOC’s guidance on the use of criminal history records in employment decisions
  • Conducting criminal background checks using eCrim, VECHS, and Rap Back programs
  • Incentives and support for employers who hire individuals with criminal backgrounds

Image of a magnifying glass over the words Criminal Record

Hawaii Law – When Can Hawaii Employers Inquire About and Consider Criminal History?

Hawaii law prohibits discrimination in employment based on arrest and court record.[2]  This means an employer can never inquire about an arrest record.  An employer, however, can inquire about and consider an individual’s criminal conviction record in making employment decisions, as long as:

  1. Inquiry into and consideration of criminal history occurs only after the prospective employee has received a conditional offer of employment;
  2. The conviction occurred within the past 10 years (excluding periods of incarceration); and
  3. The conviction bears a rational relationship to the duties and responsibilities of the position.

See HRS § 378-2.5.

When Can an Employer Inquire About Convictions?

Inquiry into and consideration of convictions can only occur after the prospective employee has received a conditional offer of employment.  This means that employers should make sure applications for employment do not ask about arrests or convictions.  Employers should also ensure that anyone participating in the recruitment and interview process knows that they cannot inquire about arrests and convictions.

This requirement does not apply to employers who are expressly permitted to inquire into an individual's criminal history for employment purposes pursuant to any federal or state law including private schools, financial institutions, security guard agencies, insurance companies, and various government entities.[3]

What Constitutes a Conviction?

“Conviction” means “an adjudication by a court of competent jurisdiction that the defendant committed a crime.”  HRS § 378-2.5.  An arrest is not a conviction; the fact that someone was arrested does not prove that he or she committed a crime.  Delayed Acceptance of Guilty (DAG) and Delayed Acceptance of No Contest (DANC) pleas are also not convictions under state law.  Thus, arrests, DAGs, and DANCs cannot be considered in employment actions.  Certain traffic offenses, however, are considered convictions, so employers should be careful not to require traffic abstracts prior to a conditional offer of employment.

How Does the 10-Year Period Work?

An employer may only inquire about or consider a conviction that occurred within the past 10 years.  If the conviction resulted in incarceration, such time does not count towards the 10 years.  For example, in 2019, the XYZ Company makes an offer to Jo conditional upon clearing a criminal history background check.  The background check reveals Jo was convicted of theft in 2007 and was incarcerated for three years, until 2010.  An employer can consider the theft conviction because it occurred during the relevant timeframe (3-year incarceration adds an additional 3 years to the 10-year period).  If, however, Jo was only incarcerated from 2007-2008, the employer cannot consider the conviction because there was no conviction or incarceration during the 10-year period.

This requirement does not apply to employers who are expressly permitted to inquire into an individual's criminal history for employment purposes pursuant to any federal or state law including private schools, financial institutions, security guard agencies, insurance companies, and various government entities.[4]

What Constitutes a Rational Relationship?

An employer can consider an individual’s criminal conviction record for employment purposes only if the conviction bears a rational relationship to the duties and responsibilities of the position.  If a conviction during the relevant time period bears a rational relationship to the duties and responsibilities of the position, a conditional offer of employment may be withdrawn or a current employee can be terminated.  The inquiry is fact-based and requires proof that a particular conviction has an enumerable connection to the specific core duties and responsibilities of the job.  The connection cannot be speculative, remote, or based on broad “character” assumptions.

In Shimose v. Hawaii Health Systems Corporation (January 2015), the Hawaii Supreme Court held that a hospital failed to show a rational relationship between a prior drug conviction and the duties performed by a radiological technician (“radtech”).  The radtech position was primarily focused on medical imaging and maintenance of medical imaging equipment, and the employer failed to provide specific evidence that radtechs had access to controlled substances or that drug convictions had a rational relationship to abuse of patients.

Employers should be careful not to base decisions on assumptions and to review each situation on a case-by-case basis.  It is advisable for employers to discuss employment decisions based on a criminal record with HR professionals or legal counsel.

Image of a man handcuffed

Federal Law – EEOC Guidance

No federal law specifically prohibits consideration of arrest or conviction records in employment.  The Equal Employment Opportunity Commission (“EEOC”), however, has enforcement guidance indicating that use of criminal history records in employment decisions may violate Title VII of the Civil Rights Act if (1) employers treat job applicants or employees with the same criminal records differently because of their race, national origin, or another protected characteristic (disparate treatment discrimination) or (2) there is a disparate impact, meaning that use of criminal history disproportionately excludes people of a particular race or national origin or other protected class.

If there is disparate impact, an employer must show that such exclusions are “job related and consistent with business necessity.”  The employer can make this showing if it (1) considers the nature of the crime, the time elapsed since the criminal conduct occurred, and the nature of the specific job, and (2) gives an applicant with a criminal record the opportunity to explain the circumstances and provide mitigating information showing that he or she should not be excluded based on the offense.

Image of fingerprints being taken

How Do I Conduct a Criminal Background Check?

You have issued a conditional offer and are at the point of conducting a criminal history background check or you are an entity expressly permitted to conduct a criminal history background check.  Now what?

eCrim

Many Hawaii employers use the Hawaii Adult Criminal Information System, known as eCrim, to conduct criminal background checks on applicants or employees.  The eCrim system is an online service that allows users to search for an individual’s conviction record based on name, social security number, date of birth, and/or gender.  The results of a search depend upon the information you put in.  For example, if you search for a person’s name, it will list convictions under that name, but not convictions by the same person if convicted under an alias.  Additionally, the eCrim system contains records on criminal convictions in Hawaii, but does not include information on arrests or any federal criminal records or records from other states. 

VECHS

The Hawaii Volunteers & Employees Criminal History Service (“VECHS”) program obtains criminal records that are linked to an individual’s fingerprints.  If an individual has convictions under different aliases, all of those records should be produced if there is a fingerprint connected to the record.  The VECHS program includes records from Hawaii and the FBI, which includes a rap sheet covering all 50 states and the federal court system.

Only qualified entities, however, can participate in the VECHS program.  A “qualified entity” is defined as a “business or organization, whether public, private, operated for profit, operated not for profit, or voluntary, which provides care or care placement services.”  See HRS § 846-2.7(c).  “Care" means “the provision of care, treatment, education, training, instruction, supervision, or recreation to children, vulnerable adults, or individuals with disabilities.”  Id.

Notably, the VECHS program is not available to organizations currently required to obtain criminal history record checks on their employees and/or volunteers under other statutory provisions, such as day care centers, foster parents, public school teachers, skilled nursing facilities, etc.

More information about VECHS can be found in HEC’s whitepaper, Research Report on the VECHS Program:  The Hawaii Volunteers & Employees Criminal History Service.

Rap Back

The Rap Back (Record of Arrest and Prosecution Background) program is an extension of the fingerprint-based history record check process authorized by HRS § 846-2.7.  The Rap Back program provides an on-going criminal history record monitoring for certain agencies and organizations authorized under section 846-2.7(b), including private schools, public charter schools, the Hawaii Health Systems Corporation, and “qualified entities” under the VECHS program.  These agencies and organizations can register for this free subscription-based notification service to continuously monitor their employee’s national and state criminal and arrest records.  The program will immediately notify the employer when criminal activity is reported on a specified individual.

Employers who want to participate in the Rap Back program must meet the requirements set out in the Subscribing Entity Startup Checklist.

For more information, contact the Hawaii Criminal Justice Data Center’s help desk at (808) 586-2547 or ag.hcjdc.helpdesk@hawaii.gov.

FCRA

Employers utilizing a third party to conduct a criminal history check should be sure they are in compliance with the Fair Credit and Reporting Act (“FCRA”).  Prior to using a third party to obtain criminal record information on a job applicant, an employer must make required disclosures to the applicant and obtain his/her written authorization in the manner prescribed by FCRA.  Read more about FCRA requirements in HEC’s whitepaper, “Fair Credit Reporting Act (“FCRA”) Compliance in the Hiring Process.”

Image of a man behind bars

What if I Discover a Criminal Record?

If an employer discovers a conviction within the past 10 years that has a rational relationship to the duties and responsibilities of the position, the conditional job offer may be withdrawn if dealing with an applicant, or the employee may be terminated if dealing with a current employee.  As discussed above, however, the EEOC advises employers to give an individual with a criminal record the opportunity to explain the circumstances and provide mitigating information showing that he or she should not be excluded based on the offense.  Indeed, the mere existence of a criminal record should generally not be an automatic disqualifier, particularly in this tight labor market.

A survey conducted by the Society for Human Resources Management (“SHRM”) and the Koch Institute show that three-quarters of Americans feel comfortable if the businesses they patronize are known to give those who have a criminal record a second chance by giving them a job.  The same number of Americans are comfortable working for an employer known to give second chances.

In addition to the positive attitudes of people willing to patronize and work for businesses who employ individuals with criminal histories, there are other incentives and support for employers to give second chances:

  • The Work Opportunity Tax Credit provides a credit to employers against the employee’s first and second year’s wages.
  • The Federal Bonding Program provides Fidelity Bonds for at-risk, hard-to-place job seekers for the first six months of employment at no charge to the employer.

Additionally, SHRM recently launched Getting Talent Back to Work, which includes a toolkit that provides employers with information, guidance, and tools needed to hire individuals with criminal records.

Image of people shaking hands in the foreground

Additional Resources

HEC

Hawaii

Federal

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[1] In 1973, the Hawaii Legislature enacted legislation banning discrimination based on an individual’s arrest and court record.  In 1998, the Legislature enacted additional legislation allowing employers to inquire about and consider conviction records under certain conditions, which are discussed in more detail, below.  See HRS § 378-2.5.
[2] HRS § 378-1 defines “Arrest and court record” as including “any information about an individual having been questioned, apprehended, taken into custody or detention, held for investigation, charged with an offense, served a summons, arrested with or without a warrant, tried, or convicted pursuant to any law enforcement or military authority.”
[3] For a list of other exceptions, see HRS § 378-2.5(d).
[4] For a list of other exceptions, see HRS § 378-2.5(d).

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