STAND

STAND. COM. REP. 907

Honolulu, Hawaii

, 2003

RE: S.B. No. 830

S.D. 1

H.D. 1

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2003

State of Hawaii

Sir:

Your Committee on Labor and Public Employment, to which was referred S.B. No. 830, S.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO CRIMINAL HISTORY RECORD CHECKS,"

begs leave to report as follows:

The purpose of this bill, as received by your Committee, is to improve the process of criminal history record checks by:

(1) Implementing the recommendations of the Criminal History Record Check Working Group (Working Group), established pursuant to Act 263, Session Laws of Hawaii 2001, to address disparate practices, inconsistencies, and duplicative language in the statutes authorizing criminal history record checks for employment background checks, certifications, and licensing of individuals;

(2) Clarifying that individuals who are civil service employees or probationary employees covered by chapter 89, Hawaii Revised Statutes (HRS), who move to other positions within the state government system are not subject to criminal history record checks unless an agreement to the contrary is reached in collective bargaining; and

(3) Clarifying that the ten-year limitation on researching criminal convictions for employment disqualification does not apply to entities statutorily authorized to inquire into an individual's criminal history background.

The Department of Labor and Industrial Relations, Department of Human Services (DHS), Hawaii Civil Rights Commission, Chamber of Commerce of Hawaii, and Hawaii Bankers Association testified in support of this measure. The Department of the Attorney General, Department of Human Resources Development, Hawaii Health Systems Corporation, Department of Public Safety, Department of Health, Department of Education, and Hawaii Association of Independent Schools testified in support of the intent of this measure.

Current laws relating to criminal history record checks are often confusing, inconsistent, duplicative, and at times conflicting. The issue is further complicated by questions as to what exactly a criminal history record check consists of, what records are available to the public or employers, and how these records may be used.

An attempt to solve these problems was made in 2001 with the establishment of the Working Group. The Working Group was charged with the task of resolving policy issues relating to criminal history record checks and making recommendations to the Legislature, many of which are contained in this measure.

Your Committee finds, however, that additional language affecting areas of collective bargaining, civil service reform, and the public employee and employer relationship was not a topic of discussion of the Working Group, and that the references to recruitment, examination, and probationary employees, abridge policies spelled out in the Civil Service Reform Act. Your Committee finds that it was never the intention of the Working Group to deal with these issues.

Accordingly, your Committee has amended this measure by deleting its contents and inserting the substance of H.B. No. 641, H.D. 3. As amended, this bill is strictly limited to resolving disparate practices, inconsistencies, and duplicative language relating to the conduct of criminal history record checks for employment, certification, and licensing of individuals as recommended by the Working Group.

Your Committee has made further amendments to this measure by:

(1) Requiring instead of permitting DHS to conduct annual name inquiries into the state criminal history record files for all staff members and new staff members of the Hawaii Youth Correctional Facility;

(2) Including the board of directors of an association of apartment owners or cooperative housing project, or the manager of a condominium or a cooperative housing project, as employers who are expressly permitted to inquire into an individual's criminal history for employment purposes who are not subject to conditional job offer and ten-year limitation requirements;

(3) Clarifying the definition of "applicant;"

(4) Clarifying that the Judiciary may terminate an employee or applicant convicted of a crime;

(5) Restoring language limiting the Judiciary's ability to terminate an employee or deny employment to an applicant to instances where the Judiciary finds that the criminal history record indicates that the employee or applicant poses a risk to the health, safety, security, or well-being of youths under detention;

(6) Clarifying that denials of employment as a staff member of a youth correctional facility or other position that requires the exercise of police powers, including the power to arrest in the performance of duties pursuant to chapter 353, HRS, shall be allowed based solely on a prior criminal conviction; and

(7) Making technical, nonsubstantive amendments for purposes of clarity, consistency, and style.

As affirmed by the record of votes of the members of your Committee on Labor and Public Employment that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 830, S.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 830, S.D. 1, H.D. 1, and be referred to the Committee on Judiciary.

Respectfully submitted on behalf of the members of the Committee on Labor and Public Employment,

		____________________________ MARCUS R. OSHIRO, Chair