Quick Reference Employer Checklist
- Do not ask about criminal history before a conditional job offer
- Use a separate consent form to request a background check
- Limit review to convictions within 7 years for Felonies and 5 years for Misdemeanors
- Evaluate whether conviction rationally relates to job duties
- Follow FCRA notice requirements
General Guidelines
No Inquiries or Consideration of Arrest & Court records:
Hawaii Revised Statute (HRS) § 378-2 prohibits employment decisions based on arrest and court records. This means employers may not consider an individual’s arrest history in pre-employment or employment decisions.
An “arrest and court record” is “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.” HRS § 378-1.
Conviction Inquires & Consideration AFTER Conditional Offer of Employment
Inquiries: Unless exempt by law, employers may inquire about an individual’s criminal conviction record only after a conditional offer of employment is made. This includes a prohibition against asking applicants about criminal history on employment applications. This is known as the “Ban the Box” law because applications cannot ask applicants to “check the box” to indicate their criminal history.
Consideration: In addition, unless exempt by law, employers may only consider criminal convictions if:
• The convictions occurred within the most recent 7 years for felony convictions and 5 years for misdemeanors, excluding periods of incarceration;
• Bears a rational relationship to the duties and responsibilities of the position.
Examples of employers exempt from these requirements include, but are not limited to, private schools, homes for developmentally disabled individuals, federally insured financial institutions, and insurance companies.
A conviction is “an adjudication by a court of competent jurisdiction that the defendant committed a crime.” An arrest, Delayed Accept of Guilty (DAG) plea, and Delayed Acceptance of No Contest (DANC) plea are not convictions for employment purposes and must not be considered in employment actions.
Please note that certain traffic infractions are considered convictions, and as a result, employers should take caution when requesting traffic abstracts prior to making a conditional offer of employment.
Please refer to HRS § 378-2.5 and the Hawaii Civil Rights Commission’s Fact Sheet regarding Employment Discrimination Prohibition Based on Arrest Court Record for more information.
7/5-Year Lookback Period & Incarceration: Employers may exclude any period of incarceration from the 7/5-year lookback period. In other words, employers can subtract the time spent in prison or start the lookback period after the individual is released from incarceration. This ensures that the 7/5-year lookback period reflects the time the individual was in the community and not incarcerated.
For example, if a conditional offer of employment is made in 2025 and an applicant was convicted of a felony in 2015 and served 5 years in prison (released in 2020), then this conviction may be considered because only 5 years have passed since the conviction date and offer of employment, when excluding periods of incarceration.
If an individual claims that their period of incarceration is less than what is documented in their conviction record (normally the court-ordered sentence), employers are required to provide the individual an opportunity to present evidence of their release date. Employers should note that it is common for individuals to serve less time in prison than the court ordered-sentence.
Rational Relationship: Pursuant to Hawaii law, adverse employment action can only be based on a criminal conviction if “the relationship between the conviction and the employment” is “rational” and not “so remote” or “attenuated” that the relationship becomes “arbitrary or irrational.” Wright v. Home Depot U.S.A., Inc., 111 Haw. 401, 412, 142 P.3d 265, 276 (2006), Shimose v. Haw. Health Sys. Corp., 134 Haw. 479, 484, 345 P.3d 145, 150 (2015). Pursuant to federal law, employers may not consider criminal history in employment decisions if doing so disproportionately impacts a protected class and must show that such consideration is “job related” and “consistent with business necessity.” The U.S. Equal Employment Opportunity Commission (EEOC) provides guidance explaining that employers should look at each individual and position on a case-by-case basis, and evaluate the conviction in consideration of the following factors:
• Nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and/or completion of the sentence; and
• The nature of the job held or sought.
Employers are also advised to provide the individual an opportunity to demonstrate or explain why the conviction should not exclude them from employment. Please refer to the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act for more information.
Rescinding an Offer of Employment: Employers using a third-party consumer reporting agency to conduct criminal history checks must comply with the Fair Credit and Reporting Act (FCRA). When rescinding an offer of employment based on information obtained from the third-party reporting agency, the FCRA requires employers to provide certain notices and disclosures to the individual.
Conducting a Criminal Background Check
After providing a conditional offer of employment and obtaining written authorization from the individual to conduct a criminal background check, employers may conduct a check via a third-party consumer reporting agency or by relying on the following resources:
eCrim: eCrim is Hawaii’s Adult Criminal Information site provided by the Hawaii Criminal Justice Data Center (HCJDC) that allows you to search and view conviction information from HCJDC’s records. Note that data only includes criminal convictions in the state of Hawaii.
VECHS: Certain entities, such as organizations providing care to vulnerable populations (children or disabled individuals), may apply to use the Hawaii Volunteer & Employee Criminal History Service (VECHS) to obtain criminal records based on fingerprints from both the state of Hawaii and Federal Bureau of Investigation (FBI). Qualifying organizations may also participate in the Record of Arrest and Prosecution Background (Rap Back) program, where the Hawaii Criminal Justice Data Center provides on-going criminal history record monitoring for certain agencies and organizations.
Please visit the Hawaii Criminal Justice Data Center’s website for more information.
Note that whenever a third party provides information regarding an applicant or employee to an employer, employers must comply with the FCRA’s requirements.
Members may contact their HR Consultant with questions regarding criminal background checks.
Please note the information provided is for informational purposes only and may not reflect the most current regulatory developments. We strive to keep our materials up to date, but there may be occasions when information becomes outdated. Users are encouraged to verify the applicability of the content before relying on it for decision-making. If you have any questions or concerns regarding the accuracy or relevance of the information, please contact us directly for assistance.