Hawaii has narrowed the scope of what employers can think about concerning a person’s conviction historical past when making employment selections.
Hawaii employers have lengthy been required to restrict their consideration of felony and misdemeanor convictions to a 10-year lookback interval, until they fell inside one of many statutory exemptions as a part of its longstanding “ban the field” laws. State regulation has additional required employers to use a “rational relationship” take a look at earlier than denying a potential or present worker a place following a background test, which implies an employer might solely think about these convictions occurring within the permissible time interval if there’s a “rational relationship” between the convicted crime and the possible job.
The Hawaii legislature has taken additional steps to slender the scope of what employers can think about concerning a person’s conviction historical past. The priority was that, with out additional change, the “rational relationship” take a look at would nonetheless be ripe for subjectivity, creating a possible for inconsistent software as a consequence of categorical or unconscious bias, which can lead to discrimination towards an individual who has lengthy since paid their debt to society and who poses little to no danger to the employer or to the general public. Consequently, on September 15, 2020, the Governor of Hawaii signed into regulation Act 051 (20), amending Hawaii Revised Statutes Part 378-2.5 by lowering the “lookback” interval and differentiating between felonies and misdemeanors. The intent was to reduce any doable acutely aware or unconscious bias that arises when an employer views an “outdated” crime when making employment selections.
Felonies older than seven years and misdemeanors older than 5 years are now not related towards job suitability determinations, until they fall inside one of many current 18 statutory exemptions, e.g., Division of Schooling staff. Even with these distinctions and restricted “lookbacks,” employers should nonetheless apply the “rational relationship” take a look at when making employment selections.
Moreover, the suitability willpower with respect to related felony historical past might solely happen after the applicant has acquired a conditional job supply.
If an employer has prolonged a conditional job supply to an applicant or provided a present worker a promotion and the individual’s background test reveals a felony historical past for a Hawaii-based place, search authorized counsel to overview any potential publicity, if relevant, arising out of the decreased “lookback” interval and software of the “rational relationship” take a look at earlier than denying employment.
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