Washington State Jumps on the Pay Transparency Bandwagon

Nilan Johnson Lewis PA
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A recent amendment to Washington law will require employers to disclose information about pay and other benefits in postings for jobs in the state. This new affirmative disclosure requirement, which applies to employers with 15 or more employees, becomes effective on January 1, 2023.
 

Prior to this amendment, Washington’s Equal Pay and Opportunities Act (EPOA) required that employers, after making an initial job offer to an external applicant, disclose the job’s wage or salary, but only if the applicant requested that information. With the amendment, the applicant’s request is no longer required. Instead, in each posting for a job in Washington, employers must proactively disclose:

  • the wage scale or salary range for the job and
  • a “general description of all of the benefits and other compensation” to be offered to the hired applicant.

The law does not address how employers might meet the benefit disclosure requirement. However, a Senate Bill Report provides some guidance, acknowledging that it may be “difficult to manage the benefit requirement” and suggesting that burden could be eased by “posting a link” because “most employers have links” to benefit information.

The term “posting” is defined broadly to include

“any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.”

Notably, the new disclosure requirements apply to postings only directed at external applicants. But EPOA already imposes pay disclosure requirements for internal job candidates. Specifically, upon request by an employee offered an internal transfer or promotion, the employer must then provide the new position’s wage scale or salary range.

EPOA authorizes both government enforcement mechanisms and a private right of action. For violations of the law, employers may be subject to civil penalties imposed by the state’s Department of Labor & Industry (L&I). In addition, applicants and employees may bring civil actions to recover the following:

  • actual damages
  • statutory damages, equal to the actual damages or five thousand dollars, whichever is greater
  • interest of one percent per month on all compensation owed
  • costs and reasonable attorneys’ fees

Key questions remain unanswered. For example, the law does not address whether all 15 employees needed to meet its coverage threshold must be in Washington State. Nor does it specify whether its requirements extend to postings for jobs that could be performed remotely from Washington.

L&I has announced that its Employment Standards Program anticipates developing an administrative policy to help employers better understand the requirements of this legislation. Hopefully, that guidance will address these important unanswered questions. But in the meantime, employers with 15 or more employees should assume that Washington will follow Colorado’s lead. In other words, as they review and update their job postings in the run-up to January 1, 2023, deadline, employers should assume

  • the new requirements apply to them, even if they have only one employee in Washington, and
  • that its requirements will extend to postings for jobs that can be performed remotely from the state.

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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