The Washington Equal Pay and Opportunities Act (“the Act”) endeavors to prohibit pay discrimination and promote fairness among workers by addressing business practices that may contribute to income disparities between employees. In addition to protections against discriminatory pay practices, the Act protects the rights of employees to discuss their wages and related information.
Effective January 1, 2023, the Act was amended to require employers to proactively include in each external job posting the applicable wage/salary scale, and a general description of all of the benefits and other compensation offered. Enforcement of these job posting requirements used the same private right of action and statutory penalties ($5,000 for each violation) already existing in the Act, but did not define who was a “job applicant” for purposes of bringing an action.
The framework of the Act led to the filing of over 100 class action lawsuits—often for minor instances of nonconformance. In fact, a handful of individuals worked with a few law firms to file numerous separate class action lawsuits against different employers, seeking statutory penalties for everyone who might have seen the nonconforming job posting. Among the concerns from impacted employers resulting from these cases were (a) the lack of clarity around what constitutes a “job applicant” and (b) the inability to cure deficient postings before liability attached.
Court Case on “Job Applicant”
Earlier this year, the Washington Supreme Court heard oral arguments in Branson v. Washington Fine Wines on the following certified question:
What must a Plaintiff prove to be deemed a “job applicant” within the meaning of RCW 49.58.110(4)? For example, must they prove that they are a “bona fide” applicant?
In its briefing, the employer argued that the plain meaning of “job applicant” required the applicant to have a good-faith or bona fide intention of seeking employment. If not, people could apply to a job they had no desire or intention to take simply to receive the statutory penalty (which appeared to be happening in at least some instances). The employer urged the Court to protect legitimate applicants, rather than penalize employers for minor mistakes. To date, no decision by the Court has been published.
Legislative Action 2025
Although the Court has not yet ruled on the question, the Washington legislature recently stepped in to address at least some of the concerns, passing SSB 5408 in April 2025.
Effective July 27, 2025, SSB 5408 made significant changes to the Act. Specifically, the amended bill:
- Listing a Fixed Wage Rate. As amended by SSB 5408, the Act provides that if the job is only offered at a fixed wage rate, then the employer can just list that rate rather than a “wage scale or salary range” in external job postings or for internal transfers/promotions.
- Temporary Window of Correction. For two years (that is, from July 27, 2025, through July 27, 2027), before applicants can seek damages, they or their representative must provide a written notice to the employer of any issues of noncompliance with a job posting and give the employer five business days to correct the posting. If the employer does not correct the posting, the applicant may seek damages. Importantly, once anyone has given notice to the employer of a nonconforming job posting, that notice applies for any applicant to that posting, possibly leaving open the door to more class action lawsuits.
- LNI Administrative Complaint Process. The bill also establishes an administrative complaint process with the Department of Labor & Industries (LNI) for violations of the job posting requirements. When LNI notifies the employer of a complaint, they will provide guidance on how the employer needs to respond.
- Revised Remedies. SSB 5408 establishes a separate remedy structure for violations of the job posting requirements, whether the claim is brought through LNI or a private lawsuit:
- For failure to provide required information in external job positions, the Act will now set a range of damages from $100 to $5,000 per violation, rather than specifying $5,000 for each violation, and directs LNI or the court (as applicable) to consider certain factors when determining statutory damages, including the willfulness of the violation or whether it was a repeated violation; the employer’s size; the amount necessary to deter noncompliance; the purposes of the law; and other factors deemed appropriate.
- For failure to provide the required compensation information to employees for internal job offers or promotions, the Act limits damages to actual damages, reinstatement, injunctive relief, or other appropriate relief.
- Note that in private lawsuits involving either external job applications or internal job offers/promotions, the plaintiff can also recover their reasonable attorney fees and litigation costs.
Ultimately, under SSB 5408, the Act still requires that Washington employers disclose all wage and salary, benefits, and other compensation information in their job postings. So, employers should continue to ensure compliance. Employers can, however, take a collective breath knowing that for two years they have an opportunity to cure minor oversights and that important factors will be taken into consideration in determining potential damages for a violation.
We await further guidance from the Washington Supreme Court on the question of who is a “job applicant.” Look for a follow-up from us as the information becomes available.
Key Takeaways from SSB 5408
- Employers should designate a staff person to be responsible for reviewing compliance with job posting requirements before the posting becomes public, whether it is an external or internal posting.
- All managers should be trained to promptly report any notice of noncompliance that they receive to HR or the appropriate person so that corrective actions can be taken within the five-business-day window.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
