The Equal Pay and Opportunity Act requires employers hiring in Washington state to publish in job postings a wage scale or salary range and a general description of benefits to be offered to hired applicants. The Washington State Legislature recently passed SB 5408 amending this statute to clarify provisions regarding the required substance of the postings and the potential statutory damages for employers, and to allow employers an opportunity to correct any job posting before being subjected to penalties.
Governor Bob Ferguson has until May 20, 2025 to sign or veto the bill. If it is signed, the following changes will go into effect on July 27, 2025.
Among the most significant changes, SB 5408 amends the Equal Pay and Opportunity Act (EPOA) to now require potential plaintiffs to notify the employer in writing that its job posting does not comply with EPOA. If an employer corrects the job posting within five business days, then the potential plaintiff cannot seek penalties or damages for the violation.
Under this grace period, the employer must also contact third-party posting entities to correct the job posting. This temporary reprieve gives employers a chance to correct job postings while the pay transparency law is still relatively new to Washington. After July 27, 2027, the grace period will expire.
SB 5408 clarifies that employers cannot be held liable for unauthorized third-party postings, such as when a third party scrapes and reposts job postings without authorization from the employer.
For fixed wage positions, SB 5408 clarifies that employers are expressly permitted to disclose the fixed wage amount, rather than a scale or range. This is a helpful clarification for employers in circumstances where an advertised position will pay a fixed amount.
The statutory damages provision in the EPOA has also been clarified. Previously, the EPOA allowed job applicants to seek $5,000 in statutory damages from an employer for each noncompliant job posting. This led to a tidal wave of class action lawsuits seeking significant damages from employers based on violations as minor as a single noncompliant job posting. The original version of the statutory damages provision did not expressly clarify whether $5,000 was a fixed amount or a maximum penalty.
Now, SB 5408 provides that prevailing plaintiffs may seek statutory damages of “no less than $100 and no more than $5,000 per violation[.]” In determining the amount of statutory damages, courts are instructed to consider whether the violation was willful, the amount necessary to deter future violations, the size of the employer, and the purposes of the law.
Employers should consider taking the following actions:
Definition of “Applicant” Still to Be Decided by the Washington Supreme Court
A key issue in EPOA litigation is who qualifies as a “job applicant.” Does the law allow anyone who clicks “apply” to a noncompliant job posting to sue, even if they do not even want the job and are clicking “apply” only because they want to become a class action plaintiff? Or is the law limited to protecting actual job seekers who might be harmed by investing time in a job application without pay information? This issue is currently pending before the Washington Supreme Court in Branson v. Washington Fine Wines and Spirits LLC. The court held oral argument on February 13, 2025. The answer to this question will be significant for employers who are subject to class action litigation brought by serial plaintiffs.
Stay tuned for further updates on these issues.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following: