Salary History Ban Enacted in Hawaii

The salary history ban movement continues to gain momentum as more jurisdictions, like Hawaii, enact legislation that prohibits employers from asking applicants about their previous compensation history. On July 5, 2018, Hawaii Governor David Y. Ige signed Senate Bill 2351 (SB 2351) which goes into effect January 1, 2019.

What SB 2351 Does

The goal of SB 2351 is to achieve pay equity among men and women by prohibiting employers from requesting or considering salary history during the hiring process. Research cited in the bill states that in Hawaii, “a woman working full-time and year-round earned an average of eighty-four cents to every dollar a man earned,” with a significantly higher gap for women of color.

Under the law, employers are prohibited from: (i) inquiring about the salary history of an applicant or (ii) relying on the salary history in determining projected salary, benefits or other compensation. “Inquiring” into includes conducting a search for publicly available records of salary history or communicating with an applicant or his/her current or former employer for the purpose of obtaining the information. Salary history does not include information that speaks to an applicant’s productivity, such as revenue or sales. The law does not apply to current employees, such as applicants for internal transfers or promotions.

What SB 2351 Doesn't Do

Like other salary history ban laws, SB 2351 does not prohibit employers from discussing salary expectations with the applicant and allows for verification and consideration of salary history if the information is voluntarily disclosed. Salary history information that is unknowingly discovered through the course of a background check or during the verification search of disclosed non-salary related information is not a violation of the law, provided the employer does not rely on this information during the hiring process.

What You Can Do

Employers should consult legal counsel on implementing changes to job applications and hiring policies in preparation for January 2019, especially if they hire in multiple jurisdictions that may have conflicting requirements.