Hawaii has long been involved in the ban the box movement and employers with Hawaiian applicants and employees should be familiar with Hawaii’s take on the lookback period for those who have criminal records. The prior version of its law permitted employers to look back only 10 years when considering past arrests and other criminal records, subject to other applicable laws such as the Federal Fair Credit Reporting Act. The law also required that the record have a rational relationship to the position for which the applicant has applied. As with most ban the box laws, Hawaii allowed exceptions based on various occupations.
The leader of the ban the box movement, Hawaii has now further restricted the lookback period. Under SB 2193, the permissible period is restricted further and is more closely defined. Under the prior law, any conviction within 10 years could be considered. However, under SB 2193, an employer may only consider felony convictions for 7 years and misdemeanor convictions for 5 years. As with the previous version and similar ban the box laws, SB 2193 provides exceptions for certain occupations and circumstances. Additionally, the lookback timeframe excludes periods of incarceration. The bill also provides an opportunity for applicants to provide evidence of an earlier release date if they were released from incarceration earlier than their sentenced time.
According to the Hawaiian government, the goal of SB 2193 is to prevent employment discrimination. While some discrimination may be intentional, there can also be unintentional biases held by the hiring party of which he or she is not aware. By further restricting the use of convictions in hiring, this law seeks to lessen the impact of this unconscious bias. While impacted employers likely already have screening restrictions in place for Hawaiian applicants, they should update their policies to reflect the more restrictive time frames, especially the differentiation between the consideration of felony and misdemeanor convictions. Time is of the essence as the updated ban the box law became effective on its approval date of September 15, 2020. If you would like AccuSource to provide a complimentary review of your current background screening compliance program, please contact us at firstname.lastname@example.org.
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