Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In an effort to close what is viewed as a persistent pay gap, Washington has amended its Equal Pay and Opportunities Act (EPOA) for the second time to require employers to include wage and benefit information in their job postings. This replaces the prior requirement that employers provide this information to applicants “upon request” after receiving a job offer. Washington is one of the first jurisdictions to require this information to be provided in job postings, following Colorado and New York City. Other jurisdictions have passed wage disclosure requirements and are likely to follow suit with respect to job postings.
Which employers must comply with the wage disclosure requirements?
The wage disclosure requirements apply to employers with 15 or more employees. The law does not specify whether it counts employees in Washington only for this purpose.
What are the wage disclosure requirements for applicants?
Employers must disclose in each posting for each job opening:
- The wage scale or salary range, and
- A general description of all benefits and other compensation to be offered.
A “posting” means any solicitation intended to recruit job applicants for a specific available position that includes qualifications for desired applicants. This includes direct recruitment by the employer or indirect recruitment through a third party. It includes any electronic or hard-copy postings.
What are the wage disclosure requirements for current employees?
For employees offered an internal transfer to a new position or a promotion, the employer must provide the wage scale or salary range for the new position upon request.
How have the requirements changed?
Washington initially amended the EPOA in 2019 to mandate wage disclosures, but these amendments required employers to provide certain information only upon request. For applicants, employers had to provide the minimum wage or salary for the position upon request after an initial job offer, instead of the new requirement to post wage and benefit information for all potential applicants. For employees offered a transfer or promotion, employers had to provide upon request the wage scale or salary range or the minimum wage or salary (if a wage scale or salary range did not exist); now employers do not have the option of providing just the minimum wage or salary.
What are the remedies for violations?
Individuals may either file a complaint with the Department of Labor & Industries (L&I) or file a lawsuit if they believe a violation of the law has occurred. Remedies may include actual damages, double statutory damages (or $5,000, whichever is greater), interest of one percent per month, and payment of costs and attorneys’ fees. L&I may order payment of civil penalties in response to employee complaints, ranging from $500 for a first violation to $1,000 or 10% of damages (whichever is greater) for a repeat violation. Recovery of wages and interest will be calculated back four years from the last violation.
When do these changes take effect?
Employers must comply with the new requirements starting January 1, 2023.
Next Steps for Employers
There are a number of questions that remain unanswered in the statute. For example, it is not clear whether the law covers job postings for remote positions that can be performed in any state. L&I, the state agency charged with administering and enforcing the EPOA, is developing administrative guidance about the new wage disclosure requirements. L&I has requested that employers send questions by May 13th to its equal pay specialist. Employers can also consult with their counsel for anonymous submission to L&I.
Employers should review their compensation structures and ensure they have wage scales or salary ranges in place for all positions since they will need to include them in postings starting next year. Employers may want to consider conducting pay equity audits under attorney-client privilege to evaluate the pay of current employees. Employers should also review or develop compensation policies and provide training for managers to guide decision-making about pay. Employers will also want to consider implementing an evaluation process when advertising a position to ensure the pay of current employees falls within the range being posted to minimize potential employee relations issues.