Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2003

State of Hawaii

Sir:

Your Committee on Finance, to which was referred S.B. No. 830, S.D. 1, H.D. 2, entitled:

begs leave to report as follows:

The purpose of this bill is to implement the recommendations of the Criminal History Record Check Working Group (Working Group) that was established by Act 263, Session Laws of Hawaii 2001 (Act 263).

Specifically, this bill:

The Hawaii Civil Rights Commission, Department of Human Resources Development (DHRD), Department of Human Services (DHS), Judiciary, Honolulu Police Department, Hawaii Bankers Association, The Chamber of Commerce of Hawaii, and the Society for Human Resource Management testified in support of the bill. The Department of Education (DOE), Department of Health (DOH), Department of Commerce and Consumer Affairs Insurance Division, Department of the Attorney General (AG), and Hawaii Health Systems Corporation testified in support of the bill and offered amendments. The Hawaii Government Employees Association opposed this bill.

Your Committee finds that historically, statutory authorization to conduct in-depth criminal history record checks on prospective employees has been granted on a piecemeal basis to various departments in state government, based upon the need to protect vulnerable populations, such as children and dependent adults, or for security reasons. The Department of Public Safety, DOE, DOH, and DHS have the ability to conduct in-depth criminal history record checks on employees who have direct contact with vulnerable populations or who work in correctional facilities.

This approach has resulted in a group of employees who work for state departments or public agencies who are not required to undergo criminal history record checks but who have the same level of contact with vulnerable populations or with persons in correctional facilities.

The Working Group recommended the creation of a new section in chapter 78, Hawaii Revised Statutes (HRS), relating to public employment, that authorizes criminal history record checks for applicants and employees who have the same level of contact with vulnerable populations or access to persons in correctional facilities.

Your Committee finds that this new section relating to public employment is necessary and that applicants and employees who will be subject to these criminal history record checks should be treated in the same manner as employees who work for departments that have existing statutory authorization to conduct criminal history record checks.

Your Committee finds that this category of employees should be narrowly defined to protect against unnecessary intrusion into private information obtained through in-depth criminal history record checks. Your Committee recognizes that under the proposed language, applicants may be current employees seeking a transfer or promotion to a position that requires criminal history record checks. However, your Committee finds that existing employees who seek such positions are no different than those employees who seek promotion or who transfer into positions where statutory authorization for criminal history record checks are already required for certain positions. Your Committee further recognizes that an employee who is disqualified from a position for which the employee applies due to information obtained through a criminal history record check, may feel at risk in their present position. However, the use of such information as a basis for an adverse employment decision will be subject to section 831-3.1, HRS, which provides protection against arbitrary action.

Current law governing an employer's inquiry and use of criminal conviction information treats public and private employees differently. Specifically, section 378-2.5, HRS, permits a private employer, after a conditional offer of employment is made, to consider a criminal conviction that occurred within ten years that bears a rational relationship to the duties and responsibilities of the job, which is known as the "rational relationship" standard.

In contrast, section 831-3.1, HRS, provides that a person shall not be disqualified from public employment solely by reason of a prior conviction within twenty years. This statute permits the public employer to make an adverse employment decision when the criminal conviction is an offense that directly relates to the performance of the job, and after consideration of efforts of rehabilitation, which is known as the "direct relationship" standard. Section 831-3.1, HRS, also prohibits the use of nonconviction information.

Significantly, sections 378-2.5 and 831-3.1, HRS, apply only to an employer's consideration of publicly accessible Hawaii State criminal conviction information. Public and private employers who have specific statutory authorization to conduct in-depth criminal history record checks, which include federal and state conviction and nonconviction information, are exempt from the standards set forth in both sections.

The Working Group recommended that public employers be able to consider convictions for a ten-year period under the rational relationship standard and use the direct relationship standard for convictions older than ten years. Other recommendations include repealing the prohibition on the use of nonconviction information and limitation on use of conviction information when considering character traits.

Your Committee has two concerns regarding the recommendations of the Working Group. First, the repeal of the prohibition on the use of nonconviction information may create uncertainty as to the manner and extent to which such information may be used. Accordingly, in its next report, the Working Group is asked to review the use of such information, from a legal and practical point of view, to ensure that employers or licensing authorities do not unnecessarily infringe upon constitutional privacy rights.

Second, collective bargaining rights may be affected where conviction information is used to make an adverse employment decision on an employee in the employee's current position. Your Committee does not intend that this legislation create a new mechanism for a public employer to use criminal conviction information to take an adverse employment action against an employee who is otherwise meeting the performance standards of the employees' job. This legislation is also not intended to limit rights under collective bargaining for employees whose continued employment in the employee's current position is affected by a criminal conviction

Your Committee has amended the bill by:

Your Committee received numerous requests from state departments and other entities seeking amendments to this bill to create new statutory authorization to obtain criminal history record checks for applicants, employees, contract services providers, and licensing applicants. Your Committee declines to make these changes to this bill to ensure that this bill accurately reflects the recommendations and efforts of the Working Group.

As affirmed by the record of votes of the members of your Committee on Finance that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 830, S.D. 1, H.D. 2, as amended herein, and recommends that it pass Third Reading in the form attached hereto as S.B. No. 830, S.D. 1, H.D. 3.