News & Announcements

Federal Ban the Box Act Will Require Federal Contractors to Reexamine Exceptions

Posted Tuesday, March 3, 2020 6:27 am

The recently enacted federal “Fair Chance Act” or “Fair Chance to Compete for Jobs Act of 2019,”[1] imposes restrictions on federal contractors requesting criminal history records from applicants.  Specifically, federal contractors can only request disclosure of criminal history record information after a conditional job offer.

Hawaii’s “Ban the Box” Law

As discussed in this Feature of the Month article, Hawaii already has a similar “ban the box” law.  Hawaii law prohibits discrimination in employment based on arrest and court record.  This means a Hawaii 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 afterthe 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 relationshipto the duties and responsibilities of the position.

See Hawaii Revised Statutes (“HRS”) § 378-2.5.  HRS section 378-2.5(d) provides that the restrictions do not apply to certain employers that are expressly permitted to inquire into an individual’s criminal history for employment purposes pursuant to any federal or state law, including, but not limited to, private schools, financial institutions, security guard agencies, insurance companies, and various government entities.

How Will the Fair Chance Act Affect Hawaii Federal Contractors?

Previously, no federal law specifically prohibited consideration of arrest or conviction records in employment.  With the passage of the Fair Chance Act, however, federal contractors in Hawaii will have to look closely at the exceptions.  Federal contractors who fall under an exception outlined in HRS section 378-2.5(d) must determine whether they also fall under an exception under the new federal law.

Under the Fair Chance Act, the post-conditional job offer requirement does not apply when:

  • The law otherwise requires consideration of criminal history record information prior to a conditional offer,
  • The position requires access to classified information, or
  • The position has sensitive law enforcement or national security duties.

More positions will be added to this list of positions that are excepted from the new law.  The Fair Chance Act requires that regulations be issued, within 16 months, to identify additional positions that are excepted from the law, giving due consideration to positions that involve:

  • Interaction with minors,
  • Access to sensitive information, or
  • Managing financial transactions

The Fair Chance Act becomes effective on December 20, 2021.  We will keep you posted on the exceptions when the regulations are issued.

[1] The Fair Chance Act appears in sections 1123 and 1124 of the National Defense Authorization Act.

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