By Sarah Capelli, Employer Solutions Law
Beginning January 1, 2023, Washington employers with 15 or more employees will need to include pay information in all job postings (RCW 49.58.110). This amendment to the Equal Pay and Opportunities Act came about because the legislature intends to give women, who the legislature identifies as traditionally underpaid, or any underpaid workers the information they need to negotiate wages (RCW 49.58.005).
Similar laws have been passed in other states but applying these pay transparency laws has been notoriously difficult. In New York, for example, many employers reacted to that state’s newly enacted transparency law by posting ranges that span more than $100,000. Such wide ranges make it difficult for applicants to know what the job actually pays, but determining an appropriate salary range often depends on unknown variables like skill and experience. Geography also plays a big role where the cost of living can vary dramatically between regions within the state, and for positions where work-from-home is an option, between states where employees live.
Perhaps anticipating some of these difficulties, Washington’s Department of Labor and Industries is in the process of finalizing a new administrative policy that gives more guidance to the short law. The final version is expected to be published before January 2023, but the current draft differentiates between simple “Help Wanted” signs where no wage scale is required and postings that reference a specific position for a desired applicant. In the latter case, when qualifications are included, the law requires the posting to include the “reasonably and genuinely expected range” with a low to high range. In other words, no open-ended phrases such as “$60,000/per year and up” are permitted. The posting must also include a general description of all benefits.
As the new law takes effect, employers should expect Washington’s Department of Labor and Industries to spot check employers as situations are brought to its attention. Sometimes these spot checks are initiated when a disgruntled employee files any kind of claim with the state—discrimination, problems with paid sick leave, unpaid wages, or any other workplace complaint.
When a violation is alleged, the injured party (here, the applicant or employee seeking an internal transfer) can either sue the company directly for damages or the Department can investigate. In the latter case, the Department should first resolve the issue by talking with the employer and collect a civil penalty between $500-$1,000+ for each violation. If the employer does not cooperate, the Department can order damages be paid. Damages (awarded in court or ordered by the Department) can include any lost wages or $5,000 (whichever is greater), interest, costs, and the plaintiff’s attorney’s fees. The company may also be ordered to hire (or reinstate) the employee and provide other non-monetary (injunctive) relief. This relief is available for each violation, so considering the number of postings and new hires/transfers that any company makes, potentially liability grows exponentially.
If your company needs help complying with the new Pay Transparency Act, please contact your attorney at Employer Solutions Law. ■
Sarah Capelli has worked over 15 years in employment law representing business owners and managers. She has defended employers against charges of discrimination, wage and hour violations, wrongful termination, and more, but now devotes her practice to general advice. She enjoys working with employers to develop effective employment policies and also managing the myriad leave entitlements available under state and federal law. Before entering private practice, Ms. Capelli clerked for the honorable Judge Stephen S. Trott of the Ninth Circuit Court of Appeals. Contact her at sarah@employersolutionslaw.com | 425.644.6142
Acceptable examples of postings that meet the requirements include:
A social media post that reads, “Seeking applicants for a Billing Specialist position. Must have two years of medical bill processing experience. $30.00-$40.00 per hour, medial, vision, and dental benefits, 401k retirement plan, and stock options available. More information can be found via hyperlink here.”
An email to internal applicants that reads, “If you are a current employee with a bachelor’s degree in computer science, please apply to be an IT supervisor today! $150,000-$170,000 total per year for salary, medical benefits, and bonuses.”
