HB 1696: Updating Washington’s Equal Pay and Opportunities Act

Written by Laura Davis

On May 9, 2019, Governor Jay Inslee signed House Bill 1696, which updated Washington’s existing Equal Pay and Opportunities Act (EPOA). The EPOA will now require more transparency on pay ranges for particular positions and will prohibit employers from asking for an applicant’s wage history. This blog post covers that piece of legislation and what public employers need to know to stay in compliance.

In 1943, Washington first enacted the Equal Pay Act in an attempt to prohibit wage inequity among women. RCW 49.12.175, passed two decades before its federal counterpart, required that employers pay women the same wages as “similarly employed” men absent “a factor or factors other than sex.”  However, employers and courts were left scratching their heads on how to interpret vague parts of the law. For example, in Adams v. Univ. of Washington, the state Supreme Court had to use the federal Equal Pay Act to interpret the statute, noting “the legislative history of [Washington’s Equal Pay Act] does not provide any guidance for interpreting the state provision.”

As a means to update this act and reconfirm its commitment to pay equality, the EPOA was signed into law on March 21, 2018 and codified as RCW 49.58. The statute imposed some additional provisions for employers to follow but provided a clearer framework than its World War II predecessor. 

While the initial iteration of the EPOA focused on current employees, the new amendments focus on applicants for employment, transfer, or promotion. The legislature, in Section 1 of the Act, recognized that women have historically been offered lower starting salaries than men with the same or comparable experience and education, and lower starting salaries, in turn, “translate into lower pay, less family income, and more children and families in poverty.”

The following EPOA updates takes effect on July 28, 2019:

• Washington employers will now be prohibited from seeking wage or salary history from an applicant or a current or former employer.
• An employer may not require that wage or salary history “meet certain criteria.” What “certain criteria” means remains unclear. An employer may confirm an applicant’s wage or salary history, but only if the applicant voluntarily disclosed it, or the employer has negotiated and offered employment with compensation to the applicant.
• After the position has been initially offered to an applicant, employers must provide the minimum wage or salary for the position to the applicant upon request.
• For current employees seeking an internal promotion or transfer, the employer is required to provide the wage scale or salary range for the employee’s new position upon request.
• If no wage scale or salary range exists for a particular position, the employer must provide the minimum wage or salary expectation that was in existence prior to posting the position or making the transfer or promotion.
• If any part of the act or its application to a person or circumstance is held invalid, this does not necessarily affect the other parts of the act or the application of the provision to other people or circumstances.

The additions to the EPOA concerning pay transparency seem primarily targeted at private employers, whose wage and salary information is not considered publicly available like it is with public entities. However, the new amendments may still require public employers to review their policies, procedures, and hiring/promotion processes regarding salary history. Below are some recommendations for public employers:

• Refrain from asking for salary or wage history from applicants during the application or interview process.
• Remove questions related to wage or salary history from employment applications. This includes applications in paper and electronic formats.
• As a practical matter, an organization could consider making the wage scale or salary range for positions available online, if it has not done so already.
• Review applicable policies and procedures that relate to hiring, promotions, and transfers to ensure that they are consistent with the EPOA’s requirements.

As a reminder, the EPOA allows aggrieved individuals to file an administrative complaint through the Department of Labor & Industries or make a claim for civil damages in court. Employers are encouraged to seek legal counsel for any questions about the updates to the EPOA, and how they apply in specific situations.