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Summary of differences between federal and state regulations
Arrest & conviction record inquiries
Applies to private and public employers. See Hawaii Revised Statutes §378-2.5.
Under a Hawaii law passed in 1998, public and private employers are prohibited from inquiring into and considering conviction records for prospective employees until after making a conditional offer of employment. The conditional offer may be withdrawn if the conviction record bears a rational relationship to the duties and responsibilities of the position. However, employers may only consider convictions falling within the most recent ten years, excluding periods of incarceration.
These restrictions do not apply to employers who are permitted to check into an applicant’s criminal history under any other federal or state law. Hawaii state agencies and entities listed at Hawaii Revised Statute 846-2.7 may perform a criminal history record check, including non-conviction data, in order to determine fitness for employment, by submitting fingerprints and other information and obtaining consent.
According to Hawaii Revised Statute 831-3.2, expunged arrest records may not be divulged except by court order, or by inquiry by law enforcement or federal or state government. A person may state that he/she has no record regarding arrest, once he/she has an expungement certificate.
State
Contacts
Employer immunity from disclosure claims
Hawaii Department of Labor and Industrial Relations
Hawaii State Judiciary Administrative Offices of the Courts
Arrest record inquiries
Hawaii Civil Rights Commission
Hawaii Department of Human Services
Hawaii State Judiciary Administrative Offices of the Courts
Conviction record inquiries
Hawaii Civil Rights Commission
Hawaii Department of Human Services
Hawaii State Judiciary Administrative Offices of the Courts
Regulations
Employer immunity from disclosure claims
Haw. Rev. Stat. § 377-6, Unfair labor practices of employers
Haw. Rev. Stat. § 663-1.95, Employers’ job reference immunity
Arrest record inquiries
Haw. Rev. Stat. § 333F-22, Criminal history record checks
Haw. Rev. Stat. § 346-154, Criminal history and child abuse record checks
Haw. Rev. Stat. § 378-2, Discriminatory practices made unlawful; offenses defined
Haw. Rev. Stat. § 378-3, Exceptions
Haw. Rev. Stat. § 831-3.2, Expungement orders
Haw. Rev. Stat. § 846-2.7, Criminal history record checks
Haw. Rev. Stat. § 846-9, Limitations on dissemination
Conviction record inquiries
Haw. Rev. Stat. § 333F-22, Criminal history record checks
Haw. Rev. Stat. § 346-154, Criminal history and child abuse record checks
Haw. Rev. Stat. § 378-2, Discriminatory practices made unlawful; offenses defined
Haw. Rev. Stat. § 378-2.5, Employer inquiries into conviction record
Haw. Rev. Stat. § 378-3, Exceptions
Haw. Rev. Stat. § 831-3, Rights retained by convicted person
Haw. Rev. Stat. § 831-3.1, Prior convictions; criminal records; noncriminal standards
Haw. Rev. Stat. § 846-2.7, Criminal history record checks
Haw. Rev. Stat. § 846-9, Limitations on dissemination
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.
Conviction record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.