Hawaii was one of the first states to pass a ban the box style law, and its rule on conviction records is more specific than what most states have on the books. An employer hiring in Hawaii has to satisfy the federal Fair Credit Reporting Act the same way an employer anywhere else does, then layer Hawaii’s own timing rule and lookback period on top of it. This guide walks through both layers so a hiring manager or HR lead can see exactly where Hawaii law adds something the federal baseline does not.
This is general compliance information, not legal advice. Hawaii employment counsel should review any screening policy before it goes live, especially around the timing of a conviction record inquiry and how the lookback period is calculated.
The federal baseline every Hawaii employer starts from
Before any state rule applies, an employer running background checks through a consumer reporting agency has to follow the Fair Credit Reporting Act’s permissible purpose and disclosure rules at 15 U.S.C. 1681b. In practice that means a standalone disclosure document, separate from the job application, and the applicant’s written authorization before any report is pulled. If the employer is thinking about not hiring someone because of what the report shows, a pre adverse action notice with a copy of the report and the Summary of Rights has to go out first, followed by a real waiting period before the final adverse action notice.
The FCRA also limits how far back certain negative information can be reported. Under 15 U.S.C. 1681c, civil suits, civil judgments, and records of arrest that did not result in conviction generally cannot be reported past seven years. Convictions themselves have no federal reporting time limit, though as explained below Hawaii’s own statute limits how far back an employer may consider a conviction regardless of how far back a report could technically show it. Background screening companies also have accuracy duties under 15 U.S.C. 1681k when they report public record information that could result in an adverse employment decision, which is one reason a reputable consumer reporting agency will have a dispute process built in.
Hawaii’s conditional offer rule under HRS 378-2.5
Hawaii’s core background check statute is Hawaii Revised Statutes section 378-2.5, and it works differently from a typical ban the box law. Rather than just restricting the question on an initial application, the statute says an employer may inquire about and consider a prospective employee’s conviction record only after the person has received a conditional offer of employment. The offer can then be withdrawn if the conviction record bears a rational relationship to the duties and responsibilities of the position. Asking about or pulling conviction history before making that conditional offer is not permitted under the general rule.
The statute also sets an explicit lookback period. An employer may consider a conviction record only within the most recent seven years for felony convictions and the most recent five years for misdemeanor convictions, with periods of incarceration excluded from that count. If a prospective employee says the time actually served was shorter than what the record shows, the employer has to give that person a chance to present documentary evidence of a release date to shorten the counted incarceration period. This lookback is narrower than the FCRA’s seven year reporting rule for non conviction records, since it applies to convictions themselves and Hawaii sets a shorter five year window for misdemeanors specifically.
Section 378-2.5 carves out a long list of exceptions for employers who are separately authorized by other state or federal law to look into criminal history more broadly, including state and county government hiring under certain other HRS sections, schools, health care providers in direct client contact roles, the judiciary, armed security services, financial institutions, insurance employers, and aviation and port security positions governed by federal law. A private employer outside those categories should treat the conditional offer timing rule and the seven and five year lookback as the default standard rather than assuming an exception applies.
Hawaii’s broader fair employment law on arrest and court record
Separately from the conviction specific timing rule, Hawaii Revised Statutes section 378-2 makes it an unlawful discriminatory practice to refuse to hire, discharge, or otherwise discriminate against an individual because of a list of protected characteristics that specifically includes arrest and court record, alongside race, sex, age, religion, disability, and several others. That means an employer in Hawaii has two separate things to watch: the conditional offer and lookback timing rule in section 378-2.5 for conviction records specifically, and the broader nondiscrimination rule in section 378-2 that protects against decisions based on arrest or court record more generally. The two sections work together rather than as alternatives.
Expungement under HRS 831-3.2
Hawaii’s expungement statute, Hawaii Revised Statutes section 831-3.2, lets a person who was arrested for or charged with but not convicted of a crime apply to the attorney general for an expungement order annulling, canceling, and rescinding the arrest record. The statute lists several situations where an order will not issue, including certain bail forfeiture cases and arrests where prosecution became impossible because of the person’s own conduct, so expungement under this section is not automatic and depends on the circumstances of the case. Section 831-3.2 addresses arrests that did not lead to conviction. It is not a general tool for erasing convictions, which fall under the conditional offer and lookback framework of section 378-2.5 instead once the relevant time period has passed.
An employer that somehow sees a record that has actually been expunged under this statute should not use it as a basis for an adverse decision. Whether any particular arrest record has been expunged is not something an employer can verify on its own, since expungement orders are handled through the attorney general’s office rather than published publicly.
State criminal history checks through the Hawaii Criminal Justice Data Center
The Hawaii Criminal Justice Data Center, part of the Department of the Attorney General, runs the state’s criminal history records check program, offering both fingerprint based and name based search options depending on the purpose of the request and who is authorized to request it. Its fingerprint based background check page describes which employers and licensing programs are authorized to request a fingerprint search directly through the state repository rather than through a private consumer reporting agency. Most private employers in Hawaii are not authorized requesters for a direct state fingerprint check and instead rely on a consumer reporting agency’s county and statewide court record search, which is still subject to the conditional offer timing and lookback limits in section 378-2.5 regardless of which search method produces the record.
Hawaii rules at a glance
| Topic | Hawaii rule | Source |
|---|---|---|
| Ban the box scope | Conviction inquiry and consideration allowed only after a conditional offer of employment, not the application stage | HRS 378-2.5 |
| Lookback period | Most recent seven years for felony convictions, five years for misdemeanor convictions, excluding incarceration time | HRS 378-2.5 |
| Arrest and court record discrimination | Protected category separate from the conviction timing rule; broad nondiscrimination coverage | HRS 378-2 |
| Sealing or expungement statute | Attorney general may issue an expungement order for arrests not resulting in conviction, with listed exceptions | HRS 831-3.2 |
| Drug testing statute | No single standalone statute found governing private employer workplace drug testing procedure; employers should confirm current requirements with counsel | Not verified |
EEOC guidance and criminal history screening
The Equal Employment Opportunity Commission enforces Title VII of the Civil Rights Act, which applies in Hawaii the same as any other state when a criminal history policy has a disproportionate effect on a protected group without being job related and consistent with business necessity. The EEOC’s 2012 enforcement guidance document on arrest and conviction records has been rescinded, so employers should not cite it as current agency guidance. The Title VII statute page on eeoc.gov and the agency’s laws and guidance index are the places to check for what is currently in effect. For roles involving a medical or disability related pre employment inquiry, the EEOC’s pre employment inquiries and disability page explains what can and cannot be asked before a conditional job offer under the ADA. Hawaii employers should still apply an individualized, job related review before withdrawing a conditional offer based on a conviction record rather than relying on a blanket exclusion policy.
Putting it together for a Hawaii hiring process
A compliant Hawaii hiring flow generally looks like this: give the standalone FCRA disclosure and get written authorization before ordering any report, hold off on any conviction record inquiry until after a conditional offer has gone out, apply the seven year felony and five year misdemeanor lookback rather than considering everything a report returns, and remember that arrest and court record are separately protected under section 378-2 regardless of how old the conviction specific timing rule allows a record to be considered. If a role falls into one of the statutory exceptions that permits earlier or broader criminal history review, confirm that against the specific HRS section cited in the exception rather than assuming it applies generally.
Frequently asked questions
When can a Hawaii employer ask about a conviction record?
Only after extending a conditional offer of employment, under HRS 378-2.5. Before that point, inquiry into and consideration of a conviction record generally is not permitted outside the statute’s listed exceptions.
How far back can a Hawaii employer look at a conviction?
HRS 378-2.5 limits consideration to the most recent seven years for felony convictions and the most recent five years for misdemeanor convictions, with time spent incarcerated excluded from that count.
Does Hawaii protect arrest and court record separately from the conviction timing rule?
Yes. HRS 378-2 lists arrest and court record among the characteristics an employer cannot use as a basis for refusing to hire, discharging, or otherwise discriminating against an individual, separately from the conditional offer and lookback rule in section 378-2.5.
Can an expunged Hawaii arrest record show up on a background check?
It should not. HRS 831-3.2 lets the attorney general issue an expungement order annulling an arrest record for a person not convicted of the crime, subject to listed exceptions. An employer that sees a record that was actually expunged should not use it in a hiring decision.
Is the EEOC’s 2012 arrest and conviction guidance still in effect?
No. That 2012 enforcement guidance document has been rescinded. Employers should rely on current material published on eeoc.gov rather than citing the 2012 guidance as active policy.
Does the FCRA seven year rule apply in Hawaii?
Yes, the federal seven year reporting limit in 15 U.S.C. 1681c applies to civil suits, civil judgments, and non conviction arrest records nationwide, including Hawaii. Convictions have no federal reporting time limit, though Hawaii’s own seven and five year lookback under HRS 378-2.5 separately limits how far back a conviction may be considered in a hiring decision.
Related reading
- Ban the Box and Fair Chance Hiring Laws: An Employer Guide
- The Background Check Seven Year Rule, and How It Actually Varies by State
Ready to build a compliant Hawaii screening process? Visit Reveal Background to get started.
This article is general information, not legal advice. Hawaii employers should consult qualified employment counsel before adopting or changing a background check policy.
