Hawaii Governor David Ige has signed into law a bill that will restrict employers from inquiring about applicants’ salary history during the hiring process. In addition, the law prohibits employers from retaliating or discriminating against employees for, or restricting employees from, disclosing their own wages or discussing and inquiring about the wages of other employees. The law will take effect on January 1, 2019.

Under the new law, employers and their agents will be prohibited from:

  • inquiring about an applicant’s salary history, whether by asking the applicant him- or herself, or inquiring through the applicant’s current or former employer or its employees or agents;
  • searching publicly available records or reports to ascertain an applicant’s salary history; and
  • relying upon salary history to determine an applicant’s compensation at any time during the hiring process—including the negotiation of an employment contract—unless an applicant “voluntarily and without prompting” discloses salary history information, in which case the information may be both verified by the employer and relied upon in setting compensation (subject to other applicable law).

For purposes of the law, “salary history” includes an applicant’s current or prior wage, benefits, or other compensation, but does not include “any objective measure of the applicant’s productivity, such as revenue, sales, or other production reports.”

The law does permit employers and their agents, without inquiring about salary history, to engage in discussions about an applicant’s expectations with regard to salary, benefits and other compensation.

The provisions of the law do not apply to applicants for internal transfer or promotion with their current employer, or to public employees whose compensation is determined pursuant to collective bargaining. The law further does not apply to any attempt by an employer to verify non-salary-related information via a background check or similar process, so long as any salary history information that is accidentally or incidentally disclosed during such process is not relied upon in setting compensation for the applicant.

The law amends the anti-discrimination provisions of the Hawaii Employment Practices Act, which provides for a private right of action for aggrieved individuals and remedies that may include injunctive relief, compensatory damages, and attorney’s fees and costs.

*         *         *

We will continue to report on new developments with regard to this and other similar laws as they arise.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.