Hawaii Act 104: Equal Pay and Salary Disclosure Law

The Hawaii law often searched as “Act 104” on equal pay and salary disclosure is actually Act 203 of the 2023 Session Laws, enacted from Senate Bill 1057. Act 104 of the same session covers an unrelated health matter.¹ The correct law requires larger employers to include pay ranges in job postings, bans questions about a candidate’s prior salary, protects workers who talk about their wages, and expands the state’s equal pay statute to cover every protected class rather than only sex.²

Pay Ranges Required in Job Postings

Employers with 50 or more employees must include an hourly rate or salary range in every job listing shared with the public. The range has to reflect what the employer actually expects to pay for the role, not a placeholder or an artificially wide spread meant to draw applicants. A “job listing” covers any notice used to recruit, whether it appears on the company’s own site, a job board, or a posting handed to a staffing agency.²

Vague labels like “competitive pay” or “DOE” no longer meet the requirement. If a company posts a range of $60,000 to $70,000 but routinely offers $50,000, that gap between posted and actual pay can support a complaint to the Department of Labor and Industrial Relations. Employers should keep the market data and internal benchmarks they used to build each range, so they can show good faith if questioned.

Salary History Ban

HRS 378-2.4 prohibits an employer or its agents from asking applicants about their prior pay. The employer cannot ask the question directly, cannot search public records to find the answer, and cannot contact a previous employer to obtain it. Even when the employer already knows a candidate’s prior salary from another source, it cannot rely on that information to set the new offer.³

One carve-out exists. If a candidate volunteers salary history without being prompted, the employer may consider and verify it. Steering a conversation toward compensation and then waiting for the applicant to say a number is not a genuine voluntary disclosure. Employers can still talk about the budgeted range for the job and ask what the candidate expects going forward. What they cannot ask is “What did you make at your last job?”

The ban does not reach internal transfers and promotions, since the current employer already knows the employee’s pay. It also does not reach public-sector positions where compensation is fixed through collective bargaining.³

Right to Discuss Wages

HRS 378-2.3(b) makes it unlawful for an employer to bar employees from disclosing what they earn, asking coworkers about pay, or encouraging others to use their rights under the equal pay statute. Retaliation for any of those activities is also prohibited.⁴ Employee handbook policies that told workers they could not discuss salary are unenforceable under this section.

Expanded Equal Pay Protections

Before SB 1057, Hawaii’s equal pay statute reached only sex-based wage differences. The amended HRS 378-2.3 now prohibits pay discrimination across every protected category listed in HRS 378-2(a)(1), including race, sex, gender identity, sexual orientation, age, religion, color, ancestry, disability, and marital status.⁴ Paying a younger worker less than an older colleague doing the same work now falls under the same framework that once applied only to gender.

The law also replaced the old “equal work” test with a “substantially similar work” standard. Two positions qualify as substantially similar when they require comparable skill, effort, and responsibility and are performed under similar working conditions. The change is deliberate: cosmetic differences in job titles or task lists no longer justify a pay gap. What matters is what the employees actually do.

When a Pay Difference Is Still Allowed

Not every wage gap violates the statute. HRS 378-2.3 recognizes five categories of permissible differentials:

A bona fide seniority system that rewards tenure through a consistent structure.
A formal merit system that documents and rewards performance.
Compensation tied to measurable production, such as commissions or units produced.
A bona fide occupational qualification, where a specific characteristic is genuinely necessary for the job.
Any other legitimate business factor that is not itself a protected category.

The fifth category gives employers real flexibility, but it is not a backdoor. An employer who says a pay gap reflects “experience” has to show the experience difference is real, relevant to the role, and applied the same way to everyone regardless of protected status.⁴

Who Has to Comply

The pay-range posting rule applies only to employers with 50 or more employees. Smaller businesses do not have to include ranges in listings, but they still have to follow every other part of the law, including the equal pay rules and the salary history ban, which contain no size threshold and reach virtually all Hawaii employers.

Three categories of postings are exempt from the disclosure requirement even at covered employers:

Internal transfers and promotions, which are not treated as public job listings.
Public-sector positions where pay is set by a collective bargaining agreement.
Any employer under the 50-employee threshold.

Employers close to 50 employees should track headcount carefully, because seasonal hiring or an acquisition can push a company over the line and trigger the posting obligation quickly.

How Hawaii Compares to the Federal Equal Pay Act

The federal Equal Pay Act uses a “substantially equal” test: jobs must be closely related, requiring equal skill, effort, and responsibility under similar working conditions within the same establishment.⁵ Hawaii’s “substantially similar” language is intentionally broader, and employees generally have an easier time showing two roles are comparable even when the jobs are not near-identical.

Federal law also reaches only sex-based pay discrimination, while Hawaii’s statute covers every protected class. And the federal statute limits its comparison to a single physical establishment; Hawaii’s statute does not carry that geographic restriction in its text, which can matter for workers at companies with multiple Hawaii locations trying to identify comparable employees.⁴

1
Hawaii Legislative Reference Bureau. Bills Enacted by the Hawaii State Legislature Regular Session of 2023
2
LegiScan. Hawaii SB1057 – Relating to Employment Earnings
3
Justia. Hawaii Code 378-2.4 – Employer Inquiries Into and Consideration of Salary or Wage History
4
Justia. Hawaii Code 378-2.3 – Equal Pay
5
U.S. Department of Labor. Equal Pay for Equal Work