Salary History Ban in Hawaii: What Employers Can Ask

Federal law does not impose a blanket prohibition on salary history inquiries. The Equal Employment Opportunity Commission (EEOC) has taken the position that broad salary history bans may help reduce pay discrimination, but no federal statute explicitly prohibits employers from asking about prior wages. However, the EEOC enforces Equal Pay Act (29 U.S.C. § 206) claims and Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), which can address pay discrimination resulting from reliance on salary history when that reliance reflects discriminatory animus based on protected characteristics.

Some federal contractors are subject to Executive Order 11246 requirements under the Office of Federal Contract Compliance Programs (OFCCP), which prohibits discrimination and may restrict salary history inquiries for certain positions. However, the federal baseline for private employers is permissive—salary history questions are generally allowed unless they are used to discriminate based on a protected characteristic or violate specific state or local laws. Remedies under federal law are limited to cases where discrimination based on race, color, religion, sex, national origin, disability, or age can be proven, not merely because a salary history question was asked.

Hawaii Revised Statutes section 378-72 provides one of the nation's broadest salary history bans. The statute applies to all employers in Hawaii, regardless of size, with very limited exceptions. The law is significantly stronger than federal law because it imposes a categorical ban on salary history inquiries rather than limiting only discriminatory use of such information.

Under Hawaii's law, employers are prohibited from: (1) requesting salary history information from job applicants or their references before making a job offer, (2) relying on prior compensation history in setting compensation, and (3) asking applicants to disclose prior pay as a condition of employment. The only exception is that after a conditional offer of employment has been made, an employer may verify an applicant's previous salary as part of a background check, but only if the applicant consents and the information is not used to determine or negotiate the offer amount.

Hawaii's law covers all private employers, public agencies, and staffing firms. It applies equally to full-time, part-time, and temporary positions. Unlike some state laws, Hawaii's statute contains no carve-outs for executive-level positions or specific industries. The state has determined that salary history inquiries perpetuate historical wage discrimination and pay inequality, particularly affecting women and minorities, and therefore warrant categorical prohibition rather than case-by-case scrutiny.

Remedies under Hawaii law are broader than federal law in this context. Employees or job applicants can file complaints with the Hawaii Department of Labor and Industrial Relations (DLIR), which has authority to investigate, conciliate, and impose civil penalties. Violations can result in penalties up to $500 per employee affected, which can accumulate across multiple applicants. Affected individuals may also pursue damages for lost wages or benefits resulting from a violation, though private rights of action are less clearly established than administrative remedies.

Hawaii's salary history ban contains very few exceptions. The primary exception is that after a conditional offer of employment has been made, an employer may verify an applicant's prior salary history, provided the applicant consents in writing and the information is not used to determine or modify the offer amount. This exception is narrowly construed—verification must occur after the offer, not before, and cannot be a condition of accepting the offer.

Another limited exception applies to internal promotions or transfers within the same employer. Some legal interpretations suggest that an employer may review the prior salary of an internal candidate when promoting from within, since the applicant is not a new hire and the prohibition targets external hiring discrimination. However, this exception is not explicitly stated in the statute and should be approached cautiously.

Employers may also ask applicants about their salary expectations or desired compensation going forward, which is different from asking about past salaries. Questions like "What salary range are you seeking?" or "What compensation would you require for this role?" are permissible and do not violate the statute.

Common employer defenses to alleged violations are limited. An employer cannot defend a salary history inquiry by claiming it was necessary for business purposes or that the applicant volunteered the information unprompted (the employer still cannot solicit or rely upon it). Likewise, claiming ignorance of the law is not a valid defense. If an employer received salary history information unsolicited from a reference or recruiter, the employer should document that it did not request the information and did not rely on it in hiring decisions.

The statute does not apply to internal employees conducting background checks for government security clearances, law enforcement purposes, or court-ordered investigations, though such carve-outs are narrow and must be documented.

Step 1: Document Everything. Keep detailed records of all interactions with the employer during the hiring process. Save job postings, application forms, interview notes, and any written communication (emails, messages) where the employer asked about your salary history. Record dates, times, and the names of people who asked about your past compensation. Take screenshots of online applications or forms that request salary history information. If a recruiter or staffing agency asked about your salary history on behalf of an employer, note their name and affiliation. Document whether the question occurred before or after a job offer was made, as this distinction is critical to establishing a violation.

Step 2: Determine If an Offer Was Made Before the Question. Review the timeline carefully. If the employer asked about salary history before making a conditional or formal job offer, this is a clear violation under HRS 378-72. If a salary history question occurred after a conditional offer was extended AND you provided written consent, the inquiry may be permissible. If you were told the offer was conditional on salary verification, document that statement. If the employer asked you to disclose prior pay as a precondition to receiving an offer, that is a violation. Do not sign any agreement waiving your rights related to this violation.

Step 3: File a Complaint with Hawaii DLIR. You have 180 days from the date of the violation to file. Contact the Hawaii Department of Labor and Industrial Relations, Civil Rights Enforcement Unit, located at 830 Punchbowl Street, Honolulu, HI 96813. Phone: (808) 586-8644. Email: dlir.civil.rights@hawaii.gov. Website: labor.hawaii.gov. You can file a complaint in writing (mail, email, or in person) or by phone. Provide: (1) your name, address, and contact information, (2) the employer's name, address, and contact information, (3) dates when the salary history question was asked, (4) the name of the person who asked the question, (5) a detailed description of what was asked and your response, (6) whether you received a job offer and when, (7) whether you were hired or rejected, (8) copies of all documents (emails, application forms, notes) supporting your claim, and (9) whether you filed the complaint within 180 days of the violation.

Step 4: Expect Investigation and Conciliation. After filing, the DLIR Civil Rights Enforcement Unit will acknowledge receipt of your complaint, typically within 5-10 business days. An investigator will be assigned to your case. The investigator will contact the employer to request information about their hiring process, application materials, and documentation of the job offer timeline. The employer will have an opportunity to respond to your allegations. The investigator may interview witnesses, including the person who asked the salary history question. The investigation typically takes 30-60 days, though complex cases may take longer. You may be asked to provide additional documentation or clarification. The DLIR will attempt conciliation—bringing both parties together to reach a settlement—before pursuing formal enforcement action. During conciliation, you may negotiate damages, which could include back pay, front pay, or damages for emotional distress.

Step 5: Consult an Employment Attorney If Needed. If the DLIR investigation does not resolve your complaint satisfactorily, or if the employer retaliates against you for filing, consult a Hawaii employment law attorney licensed to practice in Hawaii. An attorney can advise whether you have grounds for additional claims (such as retaliation if you were rejected after filing a complaint, or breach of contract if other promises were made during hiring). Some attorneys handle salary history violations on contingency or reduced-fee basis. Contact the Hawaii State Bar Lawyer Referral Service at (808) 537-9900 or visit hawaiibar.org. If you were not hired due to the violation and suffered lost wages or benefits, an attorney can help you quantify damages and pursue a formal complaint or lawsuit if administrative remedies are exhausted. An attorney can also advise on any at-will employment implications and whether additional employment law violations occurred during your hiring process.