§378-2.5  Employer inquiries into convictionrecord.  (a)  Subject to subsection (b), an employer may inquire about andconsider an individual's criminal conviction record concerning hiring,termination, or the terms, conditions, or privileges of employment; providedthat the conviction record bears a rational relationship to the duties andresponsibilities of the position.

(b)  Inquiry into and consideration ofconviction records for prospective employees shall take place only after theprospective employee has received a conditional offer of employment which maybe withdrawn if the prospective employee has a conviction record that bears arational relationship to the duties and responsibilities of the position.

(c)  For purposes of this section, "conviction"means an adjudication by a court of competent jurisdiction that the defendantcommitted a crime, not including final judgments required to be confidentialpursuant to section 571-84; provided that the employer may consider theemployee's conviction record falling within a period that shall not exceed themost recent ten years, excluding periods of incarceration.  If the employee orprospective employee claims that the period of incarceration was less than whatis shown on the employee's or prospective employee's conviction record, anemployer shall provide the employee or prospective employee with an opportunityto present documentary evidence of a date of release to establish a period ofincarceration that is shorter than the sentence imposed for the employee's orprospective employee's conviction.

(d)  Notwithstanding subsections (b) and (c),the requirement that inquiry into and consideration of a prospective employee'sconviction record may take place only after the individual has received aconditional job offer, and the limitation to the most recent ten-year period,excluding the period of incarceration, shall not apply to employers who areexpressly permitted to inquire into an individual's criminal history foremployment purposes pursuant to any federal or state law other than subsection(a), including:

(1)  The State or any of its branches, politicalsubdivisions, or agencies pursuant to sections 78-2.7 and 831-3.1;

(2)  The department of education pursuant to section302A-601.5;

(3)  The department of health with respect toemployees, providers, or subcontractors in positions that place them in directcontact with clients when providing non-witnessed direct mental health servicespursuant to section 321-171.5;

(4)  The judiciary pursuant to section 571-34;

(5)  The counties pursuant to section 846-2.7;

(6)  Armed security services pursuant to section261-17(b);

(7)  Providers of a developmental disabilitiesdomiciliary home pursuant to section 333F-22;

(8)  Private schools pursuant to sections 302C-1 and378-3(8);

(9)  Financial institutions in which deposits areinsured by a federal agency having jurisdiction over the financial institutionpursuant to section 378-3(9);

(10)  Detective agencies and security guard agenciespursuant to sections 463-6(b) and 463-8(b);

(11)  Employers in the business of insurance pursuantto section 431:2-201.3;

(12)  Employers of individuals or supervisors ofindividuals responsible for screening passengers or property under 49 U.S.C.§44901 or individuals with unescorted access to an aircraft of an air carrieror foreign carrier or in a secured area of an airport in the United Statespursuant to 49 U.S.C. §44936(a);

(13)  The department of human services pursuant tosections 346-97 and 352-5.5;

(14)  The public library system pursuant to section302A-601.5;

(15)  The department of public safety pursuant tosection 353C-5;

(16)  The board of directors of a cooperative housingcorporation or the manager of a cooperative housing project pursuant to section421I-12;

(17)  The board of directors of an association ofowners under chapter 514A or 514B, or the manager of a condominium projectpursuant to section 514A-82.1 or 514B-133; and

(18)  The department of health pursuant to section321-15.2. [L 1998, c 175, §1; am L 2003, c 95, §12; am L 2004, c 79, §5 and c164, §10; am L 2005, c 93, §7; am L 2006, c 220, §4; am L 2008, c 28, §7]

 

Law Journals and Reviews

 

  Employment Discrimination Because of One's Arrest and CourtRecord in Hawai‘i.  22 UH L. Rev. 709.

 

Case Notes

 

  This section is not limited in application solely toprospective employees; rather, the statute applies to both current andprospective employees.  111 H. 401, 142 P.3d 265.