Hawaii Expands Pay Discrimination Protections and Requires Pay Transparency

Nilan Johnson Lewis PA

Hawaii recently joined the growing list of states expanding pay discrimination protections and requiring pay transparency from employers. Hawaii passed legislation that (1) expands the protections against pay discrimination beyond gender to include additional protected classes and (2) requires employers to include pay information in job postings and advertisements for employment.

The Hawaii statute had previously prohibited employers from discriminating based upon sex in compensation decisions. The new, expanded statute prohibits employers from pay discrimination based upon any protected category set forth in Hawaii state law. This adds age, race, disability, gender identity or expression, sexual orientation, religion, color, ancestry, marital status, arrest and court record, and domestic or sexual violence victim to Hawaii’s protections against pay discrimination. Employers may not pay employees less for “substantially similar work” based upon any of those protected characteristics. The Hawaii Civil Rights Commission has interpreted “substantially similar work” to mean “jobs that require equal skill, effort, and responsibility, and that is performed under similar working conditions, and does not include minor or irrelevant differences in jobs.”

Hawaii also added to its pay legislation by requiring employers to disclose “an hourly rate or salary range that reasonably reflects the actual expected compensation” in job postings or employment advertisements. Employers must disclose such information for any position for which the employer is seeking external applicants. The statute does not require an employer to disclose hourly or salary information for purely internal transfers or promotions. The statute also exempts employers that have fewer than 50 employees – although employees outside the state of Hawaii are included in that calculation. Further, job postings for public employee positions for which salary, benefits, or other compensation are determined pursuant to collective bargaining are not subject to the statute.

Employers with employees in Hawaii should review their compensation policies to ensure  they are protected against claims of discrimination based upon all protected characteristics, and that their job postings reflect the required compensation information.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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