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Employment Law Update: Hawaii Legislature Shortens Lookback for Criminal History to 7 Years for Felonies and 5 Years for Misdemeanors

Nov 10, 2020

Hawaii employers who consider criminal history in hiring and other employment decisions may now only consider felony convictions that occurred in the most recent 7 years and misdemeanors that occurred in the most recent 5 years, excluding periods of incarceration. This was reduced from 10 years by the Hawaii legislature, effective September 15, 2020.

The Hawaii State Legislature made this change citing a finding that meaningful employment opportunities for people with criminal records were necessary for their economic stability and that ensuring greater employment opportunities for them would reduce crime and improve public safety in the long run.  The Legislature found that the current 10 year lookback “may continue to facilitate employment discrimination against individuals who have a criminal history, but who have long since paid their debt to society and pose little or no risk to an employer or the public.”

Employers conducting criminal history checks on job applicants should not make inquiries or consider an individual’s criminal history until after making a conditional offer of employment. An employer may rescind a conditional offer or take other employment action when a conviction occurring within the applicable lookback period “bears a rational relationship to the duties and responsibilities of the position.” In order to assess this “rational relationship,” Hawaii employers need to identify the statutory elements of the offense of which the individual was convicted and compare those elements to the duties and responsibilities of the position.

Employers with questions or concerns about whether a particular conviction may be properly considered in making an employment decision should consult qualified employment law counsel.

Goodsill labor and employment attorneys are available to assist:

Barbara A. Petrus, Esq.  bpetrus@goodsill.com        

John S. Mackey, Esq.  jmackey@goodsill.com

Ashley C. Chinen, Esq.  achinen@goodsill.com

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This Goodsill Alert was prepared by John S. Mackey (jmackey@goodsill.com or (808) 547-5746) of Goodsill’s Labor and Employment Law Practice Group.

Notice:  We are providing this Goodsill Alert as a commentary on current legal issues, and it should not be considered legal advice, which depends on the facts of each specific situation. Receipt of the Goodsill Alert does not establish an attorney-client relationship.