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



(b)  Inquiry into and consideration of
conviction records for prospective employees shall take place only after the
prospective employee has received a conditional offer of employment which may
be withdrawn if the prospective employee has a conviction record that bears a
rational 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 defendant
committed a crime, not including final judgments required to be confidential
pursuant to section 571-84; provided that the employer may consider the
employee's conviction record falling within a period that shall not exceed the
most recent ten years, excluding periods of incarceration.  If the employee or
prospective employee claims that the period of incarceration was less than what
is shown on the employee's or prospective employee's conviction record, an
employer shall provide the employee or prospective employee with an opportunity
to present documentary evidence of a date of release to establish a period of
incarceration that is shorter than the sentence imposed for the employee's or
prospective employee's conviction.



(d)  Notwithstanding subsections (b) and (c),
the requirement that inquiry into and consideration of a prospective employee's
conviction record may take place only after the individual has received a
conditional job offer, and the limitation to the most recent ten-year period,
excluding the period of incarceration, shall 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 other than subsection
(a), including:



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



(2)  The department of education pursuant to section
302A-601.5;



(3)  The department of health with respect to
employees, providers, or subcontractors in positions that place them in direct
contact with clients when providing non-witnessed direct mental health services
pursuant 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 section
261-17(b);



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



(8)  Private schools pursuant to sections 302C-1 and
378-3(8);



(9)  Financial institutions in which deposits are
insured by a federal agency having jurisdiction over the financial institution
pursuant to section 378-3(9);



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



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



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



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



(14)  The public library system pursuant to section
302A-601.5;



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



(16)  The board of directors of a cooperative housing
corporation or the manager of a cooperative housing project pursuant to section
421I-12;



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



(18)  The department of health pursuant to section
321-15.2. [L 1998, c 175, §1; am L 2003, c 95, §12; am L 2004, c 79, §5 and c
164, §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 Court
Record in Hawai‘i.  22 UH L. Rev. 709.



 



Case Notes



 



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