The Equal Pay and Opportunities Act (EPOA) prohibits pay discrimination and promotes fairness among workers by addressing employer practices that contribute to income disparities between genders and other protected classes.
Disclosure of Wage and Salary Information.
An employer with 15 or more employees must disclose the wage scale or salary range with a general description of any relevant benefits in any posting. A "posting" means 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. It also includes any electronic or hardcopy postings with qualifications for desired applicants.
Upon request of an employee offered an internal transfer to a new position or promotion, the employer must provide the wage scale or salary range for the employee's new position.
Enforcement through the Equal Pay and Opportunities Act.
If an employer violates certain requirements in the EPOA, including the wage and salary disclosure requirements, a person may pursue administrative remedies or a private civil action for damages. For administrative complaints under the EPOA, the Department of Labor and Industries (L&I) must attempt to resolve any violation by conference and conciliation. If no agreement can be reached, L&I may issue a citation and notice of assessment and order the employer to pay:
If a person pursues and prevails in a private civil action, the court may award any of the following: actual damages; statutory damages equal to the actual damages or $5,000, whichever is greater; and interest of 1 percent per month on all compensation owed. The court may also order reinstatement and injunctive relief. A civil action must be brought within three years of the date of the alleged violation regardless of whether the person pursued an administrative complaint.
Disclosure of Wage and Salary Information.
An employer may provide a wage amount, in addition to wage scale or salary range, to be in compliance with the disclosure requirements. The definition of "posting" is modified by excluding a solicitation for recruiting job applicants that is digitally replicated and published without an employer's consent. If an employer uses a third-party platform or service for the posting and provides the required wage or salary information to the platform or service, then the platform or service is responsible for providing the wage or salary disclosure, unless the employer directs and controls the publication of the contents of the posting through a registered account with the platform or service.
Enforcement.
The disclosure requirements are not enforceable through the general provisions in the EPOA. Instead, a separate administrative enforcement mechanism and private right of action are established.
For administrative enforcement, L&I must investigate if a job applicant or employee files a complaint alleging a violation or if L&I has reason to believe that an employer or third-party platform or service has committed a violation. If L&I determines that a violation occurred, L&I must attempt to resolve the violation by conference and conciliation. If no agreement is reached to resolve the violation, L&I may issue a citation and notice of assessment and order the employer or third-party platform or service to pay each affected job applicant or employee statutory damages of no less than $100 and no more than $5,000 per violation. In determining the amount of statutory damages, L&I must consider the following: whether the violation was committed willfully or the violation is a repeat violation; the size of the employer or third-party platform or service; the amount necessary to deter future noncompliance; the purposes of the EPOA; and any other factor deemed appropriate by L&I.
In addition to statutory damages, L&I may:
If a job applicant or employee pursues and prevails in a private civil action, he or she is entitled to statutory damages of no less than $100 and no more than $5,000 per violation, plus reasonable attorneys' fees and costs. In determining statutory damages, the court must consider the same factors as those provided to L&I. The court may also order actual damages, reinstatement, injunctive relief, and other appropriate remedies when an employer fails to provide an employee with wage or salary information with an internal job offer or promotion. The job applicant or employee must bring a civil action within three years of the date of the alleged violation regardless of whether the job applicant or employee pursued an administrative complaint. Filing a civil action terminates L&I's processing of an administrative complaint. A job applicant or employee may be awarded damages by L&I or the court, but not both.
L&I may adopt rules for purposes of implementing and enforcing the disclosure requirements.
The amended bill specifies that an employer may provide a "wage amount," in addition to "wage scale or salary range" as provided in current law, to be in compliance with the disclosure requirements. It also specifies that a "posting" does not include a solicitation for recruiting job applicants that is digitally replicated and published without an employer's consent. The amended bill provides that, if an employer uses a third-party platform or service for the posting and provides the required wage or salary information to the platform or service, then the platform or service is responsible for providing the disclosure, unless the employer directs and controls the publication of the contents of the posting through a registered account with the platform or service.
The amended bill removes from the underlying bill the provisions requiring written notice and a 14-day opportunity to correct a violation. The amended bill excludes the wage and salary disclosure requirements from the general administrative enforcement and civil action provisions in the EPOA. Instead, the amended bill establishes separate administrative enforcement and civil action provisions for the wage and salary disclosure requirements, which differ from the general provisions in the following ways:
The amended bill allows L&I to adopt rules for purposes of implementing and enforcing the disclosure requirements.
(In support) The requirements for wage and salary disclosures are important. This is not in dispute. There have been unintended consequences with the enforcement mechanism established in the underlying bill. The law is being used by enterprising lawyers, not workers. There are individuals who are uninterested in actually applying for jobs, but who review job postings for violations of the law in order to file lawsuits. Then the unsuspecting employer is buried in legal costs and forced to settle. Employers have lost thousands of dollars—and in some cases, millions of dollars—for violating a law they were unaware even existed or applied to them. This has resulted in layoffs and even bankrupted some businesses. Many employers were unaware of the job posting requirements. Some employers have dealt with errors when relying on recruiters or technology to assist with job postings. When errors have been identified, they have been corrected immediately, yet the liability remains. Good-faith employers should not penalized thousands of dollars for mistakes. The bill allows employers a 14-day opportunity to correct job postings before lawsuits can proceed. The bill will align Washington with other states that have these requirements. This is a common-sense solution while preserving the core values of the law while also solving abusive litigation practices. Employers support wage transparency and do not want to change the underlying law.
(Opposed) The bill rolls back the critical wage transparency protections in the EPOA, which the state put into place to help with narrowing the still wide gender pay gap. It is well documented that women still are not receiving equal pay for equal work, let alone equal pay for work of equal value. Without wage and salary information, job applicants are at an inherent disadvantage in negotiations. Wage transparency is critical to addressing power dynamics. The risk of legal liability provides employers with the incentives to proactively examine their pay practices and address wage gaps. The bill makes it easier for employers to disregard the law and avoid any legal consequences for violations. The bill requires job applicants and employees to notify employers of violations during the negotiation process. These applicants will not feel comfortable complaining, and therefore, employers will not comply with the law. The bill essentially removes the legal teeth for enforcing this part of the EPOA. Employers will have endless opportunities to correct mistakes. There will be no consequences for repeat violators since they will be afforded a 14-day right to cure for every incorrect job posting. Given the withdrawal of federal support for enforcing civil rights laws, the state should maintain these standards and the private right of action. There is no excuse for employers and human rights professions to disobey the law. If there are issues with smaller employers, then the Legislature should explore different solutions than this bill.
(In support) Senator Curtis King, prime sponsor; Katie Beeson, Washington Food Industry Association (WFIA); Amber Carter, WA Retail; Lindsey Hueer, Association of Washington Business; and Breanne Martell, Littler.