“Ban the Box” Law: Can Employers Consider Reviewing A Job Applicant’s Criminal Conviction History?

New amendments aim to further reduce employment barriers for ex-offenders

The Aloha state has tightened the “Ban the Box” law — reducing the number of years employers can go back in considering criminal convictions.

Planning to open an office in Hawaii? Here is some small business news that may be useful. Hawaii legislators have tweaked their “Ban the Box” law, reducing the number of years that employers can consider when reviewing a job applicant’s criminal conviction history.
 

Previously, public and private employers could go back 10 years in considering a job applicant’s criminal record. The new law distinguishes between felonies and misdemeanors, limiting employers to consideration of felony convictions only as far back as 7 years and as far back as 5 years for misdemeanor convictions, excluding periods of incarceration.

Hawaii governor David Ige signed the new requirement into law on September 15, 2020. The amendments took effect immediately upon the democratic governor’s signature.

Hawaii was one of the first states to create a “ban the box” law, putting its version of the law into place in 1998.

Getting Rid of the Checkbox

The term “Ban the Box” refers to the box on job applications that jobseekers have to check if they have a criminal record. An estimated 70 million people, or nearly 1 in 3 U.S. adults have criminal records, according to 2018 statistics available from the National Conference of State Legislatures. “Ban the box” laws make it easier for ex-offenders to obtain jobs.

As of September 2020, 36 states and more than 150 cities and counties have adopted “ban the box” laws to reduce employment barriers for ex-offenders, according to Employment Screening Resources — a Novato, CA.-based company that performs employee background checks.

Aloha State Narrows Consideration of Criminal Records

The purpose of the changes is to place further limitations on the convictions that can be used in employment decisions, the state legislators noted in the bill.

“Unfortunately, Hawaii’s current “ban the box” law, specifically its ten-year conviction record “lookback” exception, 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 to no risk to an employer or the public,” the state legislators noted in the bill.

“The legislature finds that the ten-year “lookback” period for conviction records should be shortened to reduce unnecessary employment discrimination against individuals with old and relatively minor conviction records, in furtherance of economic self-sufficiency, and to reduce crime and recidivism rates,” they noted.

The problem of old convictions in hiring is made worse, the state legislators said, by background checks that might be inaccurate or show expunged records.

Rational Relationship Test Still Applies

Apart from the limitation based on time in considering criminal convictions, Hawaii employers also have to comply with a job suitability requirement for looking into an applicant’s criminal record — the “rational relationship test.”

An employer may inquire about and consider conviction records if those records have a “rational relationship” to the duties and responsibilities of the position in question. However, that suitability determination can only occur after the applicant has received a conditional job offer.

Exceptions Not Affected

There were no changes to exceptions to inquiries into criminal records that already exist in Hawaii’s “ban the box” law and those exceptions still apply.

Employers can still inquire into an individuals’ criminal history for employment purposes for several specific reasons such as:
 

• A job with the Department of Education
• The judiciary
• Armed security services
• Private schools
• Financial institutions insured by a federal agency
• Insurance companies
• Public library system or the Department of Health

“Ban the Box” Laws for All States

Hawaii isn’t the only jurisdiction to consider a “ban the box” law. Even in the midst of the pandemic, several other cities and states have amended, approved, or enacted such a law.

California’s “Fair Chance Act” went into effect in January 2018, making it illegal for employers in California with 5 or more employees to ask about an applicant’s criminal record before making a job offer. Under new regulations promulgated by the California Fair Employment and Housing Council that went into effect on October 1, 2020, the definition of an “applicant” was expanded to include individuals who begin work upon receiving a conditional offer of employment but before the employer has conducted or completed a criminal background check.

The change was “ostensibly prompted by the delay some employers are encountering in obtaining relevant criminal history information due to the Covid-19 pandemic, the new rule ensures that individuals working pursuant to a conditional job offer still enjoy the protections afforded by the CFCA to applicants,” according to Amanda M. Gomez, an attorney with Esptein, Becker & Green.

Other States Considering a Ban the Box Law

Maryland’s “ban the box” law went into effect on February 29, 2020 after lawmakers overrode a governor veto. It forbids all employers with 15 or more full-time employees from asking job applicants to disclose criminal records or criminal accusations before the first in-person interview.

In Virginia, a new law that decriminalizes simple possession of marijuana also contains a “ban the box” provision prohibiting employers from requiring job applicants to disclose information concerning criminal charges, arrests, or convictions for simple possession of marijuana went into effect on July 1, 2020, Epstein, Becker & Green attorney Amanda Gomez has noted.

In St. Louis, Missouri, beginning January 1, 2021, employers in St. Louis with 10 or more employees cannot base a hiring or promotion decision on an applicant’s criminal history. They can only do so if they can show that the decision is based on all relevant information reasonably available to it and that the decision regarding the applicant’s criminal history is reasonably related to the duties and responsibilities of the position, according to Jason P. Brown and Robert T. Quackenboss, attorneys at Hunton Andrews Kurth LLP. The law was unanimously passed by the City of St. Louis Board of Alderman in January 2020.

In Suffolk County, New York, employers with 15 or more employees cannot inquire about a job applicant’s criminal convictions during the application process or before a first interview as of August 25, 2020.

In Waterloo, Iowa, a city ordinance that prohibits employers with 15 or more employees within the City of Waterloo from, among other acts, requiring applicants to disclose arrests, convictions, or pending criminal charges during the application process, including, but not limited to, any interview became effective July 1, 2020.

Lisa Burden is a Freelance Writer. She specializes in writing about legal and business topics.   Connect Lisa Burden