['Recruiting and hiring']
['Negligent Hiring / Retention']
06/10/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Hawaii, an employer/former employer may disclose to a prospective employer information or opinion of employee/former employee job performance, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer discloses information or opinion that is knowingly false or knowingly misleading.
Making or circulating a blacklist is an unfair labor practice.
Arrest record inquiries
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.
Hawaii state agencies and entities listed at Hawaii Revised Statute 846-2.7 may perform a criminal history record check, including nonconviction data, in order to determine fitness for employment, by submitting fingerprints and other information and obtaining consent.
Except for the expungement requirements, both the EEOC and Hawaii have no laws or regulations specifically prohibiting arrest record inquiries. However, according to the “Guideline for Pre-employment Inquiries” by the Hawaii Civil Rights Commission, employers may not ask about arrest records, unless permitted by law.
However, the EEOC’s Notice N-915-061 says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Hawaii, an employer may ask about a conviction record, but only if the record rationally relates to the job duties and responsibilities, and only after the applicant has received a conditional offer of employment. According to the “Guideline for Pre-employment Inquiries” by the Hawaii Civil Rights Commission, employers can only ask about these conviction records if they are 10 or less years old. However, these inquiry requirements do not apply to certain employers listed at Hawaii Revised Statute 378-2.5, who may inquire about convictions before an offer of employment.
Persons may not be disqualified from employment by Hawaii state agencies solely because of a prior conviction, unless the crime rationally relates to the job duties and responsibilities and the conviction occurred within the last 10 years, not counting the period of incarceration. However, there are more exceptions in Hawaii Revised Statute 831-3.1 and 846-2.7.
Hawaii’s laws are similar to the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
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 Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.