Hawaii ban-the-box law: HRS 378-2.5 for recruiters

Hawaii's ban-the-box law, Hawaii Revised Statutes section 378-2.5, lets an employer inquire about and consider a conviction record only after a conditional offer of employment, and only where the conviction bears a rational relationship to the duties and responsibilities of the position. It also limits how far back the employer may look: the most recent seven years for felonies and five years for misdemeanors, not counting time in prison. The law reaches private employers with one or more employees, not just government. For recruiters, the rule is the same as California's in timing: nothing about criminal history before the offer.

The statute

HRS 378-2.5 was enacted in 1998 and amended many times since, most recently in 2023. Its structure:

1. (a) Subject to (b), an employer may inquire about and consider a criminal conviction record concerning hiring, termination, or the terms, conditions or privileges of employment, "provided that the conviction record bears a rational relationship to the duties and responsibilities of the position."
2. (b) For prospective employees, inquiry and consideration "shall take place only after the prospective employee has received a conditional offer of employment," which may be withdrawn if the conviction record bears that rational relationship.
3. (c) "Conviction" means a court adjudication that the defendant committed a crime, not including confidential family court judgments under section 571-84. The employer may consider only convictions within the most recent seven years for felonies and five years for misdemeanors, excluding periods of incarceration.
4. (d) The conditional offer rule and the lookback limits do not apply to employers "expressly permitted to inquire into an individual's criminal history for employment purposes pursuant to any federal or state law," followed by a list of nineteen examples.

Who is covered

HRS 378-1 defines an employer as "any person, including the State or any of its political subdivisions and any agent of such person, having one or more employees," but not the United States. So a small private business, a state agency and a county all fall under the same rule unless an exemption in subsection (d) applies.

The exemptions in (d) are specific. They include the state and counties under named statutes, the Department of Education, private schools, federally insured financial institutions, detective and security guard agencies, armed security services, employers in the business of insurance, employers of airport screeners and people with unescorted access to aircraft or secured areas, certain Department of Health and Department of Human Services roles, condominium and cooperative housing managers, and the Department of Corrections and Rehabilitation, among others. Read the list for the client's industry before you assume an exemption.

What is allowed at each stage

Arrests are a separate matter. HRS 378-2 lists "arrest and court record" among the bases on which an employer may not refuse to hire, and on which an employment agency may not refuse to refer. HRS 378-1 defines arrest and court record broadly, from being questioned or held for investigation through being charged, tried or convicted. Section 378-2.5 is the carve-out that lets employers consider convictions, within its limits; it does not open the door to questions about arrests.

Individualized assessment and notices

Hawaii's test is the "rational relationship" between the conviction and "the duties and responsibilities of the position." The statute does not list factors to weigh, does not require a written preliminary notice, and does not set a response window. It does require one specific step: if the applicant says the time they were incarcerated was shorter than the conviction record shows, the employer "shall provide" an opportunity to present documentary evidence of the release date. That matters because incarceration time is excluded from the seven and five year windows.

In practice, employers that use a screening company end up with a notice process anyway, because the federal FCRA requires one, and many use the EEOC's factors (the nature and gravity of the offense, the time elapsed and the nature of the job) to document why a conviction is rationally related to the role.

Staffing agencies and recruiters

The employer definition includes "any agent of such person," and HRS 378-2 separately covers employment agencies, which HRS 378-1 defines as anyone in the business of procuring employment for applicants or providing employees for placement with employers. For an agency recruiter, that means:

• No criminal history questions on the agency's own application or in the screen for a Hawaii role.
• A client that tells you to send only candidates with "clean" records is asking for something the agency cannot do before an offer, and arrests cannot be the basis for refusing to refer at all.
• If the client claims an exemption, get the subsection (d) category or the other law in writing.

Penalties and enforcement

Under HRS 378-4, the Hawaii Civil Rights Commission has jurisdiction over the discriminatory practices made unlawful by this part, and anyone claiming to be aggrieved may file a complaint under the procedure in chapter 368. The section itself sets no fixed fine. We have not listed remedy amounts or filing deadlines here because we did not verify the chapter 368 provisions for this page; check them with counsel or the Commission.

How it fits with FCRA adverse action

When a screening company runs the check after the offer, the FCRA applies: a stand-alone disclosure and written authorization before the check, a pre-adverse action notice with a copy of the report and the summary of rights, a reasonable wait, then the final adverse action notice. Use that pre-adverse step to invite the candidate to correct the record, including the release date that Hawaii's lookback depends on. See the FCRA background check process and background check notification emails.

Applying the lookback: an example

Hypothetical example, for illustration only. A candidate receives a conditional offer in October 2026. The report shows a felony conviction from 2017 with a three-year prison sentence, and a misdemeanor from 2019 with no jail time. For the felony, the seven-year window excludes the period of incarceration, so the time in prison does not count toward the seven years; whether the conviction falls inside the window depends on the actual release date, which the candidate may document if it differs from the record. The 2019 misdemeanor is more than five years old and falls outside the five-year window. Even a conviction inside the window may be considered only if it bears a rational relationship to the job's duties. The arithmetic belongs with the employer or its counsel, not the recruiter, but knowing the rule helps you explain why the process waits for the report.

A script for Hawaii screens

The candidate volunteers a conviction

"Thanks for letting me know. In Hawaii, conviction history isn't part of the process until after an offer, so I won't ask about it or note it."

The candidate asks how far back a check goes

"If the employer runs one, it happens after a conditional offer. I can't tell you what it will show, but you'll be asked for permission and you'll get a copy before any decision is made on it."

The hiring manager wants to know about a record before making an offer

"Hawaii only allows that after a conditional offer, unless the role falls into one of the statute's exemptions. Which exemption do you think applies?"

A Hawaii checklist for recruiting desks

1. Remove conviction and arrest questions from applications, ATS screening questions and intake forms for Hawaii roles.
2. Check the client's industry against the exemption list in HRS 378-2.5(d) and record the answer.
3. Keep anything volunteered out of submittals and notes. See what not to write in interview notes.
4. After the offer, make sure whoever reviews the report applies the seven and five year windows and excludes incarceration time.
5. Document why any conviction relied on bears a rational relationship to the job's duties.
6. For the timing rules in other states and the federal picture, see ban-the-box laws and interview questions; California's rule is in California's Fair Chance Act.