New Legal Requirements for Job Postings
This blog highlights the new Washington State Department of Labor and Industries (L&I) Administrative Policy for the Equal Pay and Opportunities Act (EPOA). As of January 1, there are new legal requirements for compensation transparency in job postings of most public and private employers.
Taking Steps Toward Workplace Gender Equality
The Washington Equal Pay and Opportunities Act (EPOA), Chapter 49.58 RCW, prohibits gender pay discrimination and promotes workplace fairness by addressing employment practices that contribute to gender-based income disparities. Last year the legislature passed ESSB 5761, amending the EPOA, as summarized in this MRSC blog, 2022 Legislative Updates to Personnel Laws — Salary and Leave.
The legislative intent in first enacting and then amending the EPOA includes taking steps towards gender equality by requiring employers to provide compensation and benefits information to applicants and employees and by prohibiting employers from seeking the wage or salary history of an applicant for employment in certain circumstances. According to RCW 49.58.005, there continues to be a gap in wages and advancement opportunities among workers in Washington, especially women. Historically, women have been offered lower initial pay than men for the same jobs even where their levels of education and experience are the same or comparable.
New L&I Administrative Policy
The new L&I Administrative Policy ES.E.1 (issued November 30, 2022) provides comprehensive guidance about the EPOA, including the new pay transparency job posting requirements. Please review this policy for more details, as the intent of this blog is to summarize the new requirements.
L&I offers free customized consultations to help employers understand the impact EPOA provisions might have on their employment practices. Their fact sheet offers more details about the consultation process. Questions may also be submitted by phone to the Employment Standards Program at 360-902-6625.
Salary and Benefits Information Now Required in Job Postings
RCW 49.58.110, which is part of the EPOA, was amended last year, effective January 1, 2023. This new law requires all employers with 15 or more employees to disclose in their recruitment advertisements the wage scale or salary range for each job opening. Previously, this employer salary disclosure was required only if requested by an applicant or candidate for an open position. It is believed that pay transparency in job postings promotes and improves pay equality, especially with regard to gender disparities.
As outlined by L&I in its Administrative Policy ES.E.1, “wage scale or salary range” means both the minimum and maximum compensation the employer reasonably and genuinely expects to pay. It is not enough to include just a minimum salary such as “at least $25 per hour” or to list just the top of a salary range. Subsection 5.1 of the policy (see page 5) includes this clarifying section:
A wage scale or salary range should provide the applicant with the employer’s most reasonable and genuinely expected range of compensation for the job. The range should extend from the lowest to the highest pay established by the employer prior to publishing the job posting. If the employer does not already have an existing wage scale or salary range for a position, a scale or range should be created prior to publishing the posting.
A general description of all benefits and other compensation to be offered to a successful candidate must also be included in these job postings. “Postings” include electronic and “hard copy” recruitment postings for specific available positions, whether posted directly by an employer or indirectly, such as with an outside recruiter or on a social media site like LinkedIn. Electronic job postings need not contain all the compensation and benefits information if links are included in the postings that point to more detailed required information and examples.
Internal Job Openings for Current Employees
If there is no posting for an internal position, the same automatic compensation disclosure requirements do not apply. Instead, wage scale or salary range must be disclosed to current employees only upon request and when they are offered an internal transfer to a new position or promotion. See RCW 49.58.110(2).
As is the case with the new requirements for job postings, this section does not apply to employers with fewer than 15 employees.
Remedies for Violations
By reference to the remedy provisions for other violations of the EPOA, RCW 49.58.110(4) provides remedies for employer violations of the compensation and benefits transparency requirements of this statute. Job applicants and/or employees may pursue a complaint with the Director of L&I (see RCW 49.58.060) or bring a civil lawsuit for damages and/or injunctive relief. Note, however, civil cases will require proof of a pattern of violations. See RCW 49.58.070.
Conclusion and Resources
Both public and private employers should review their external and internal hiring practices to be sure they are compliant with the EPOA and the new requirements for job postings. If you have legal questions about how this new law may apply to your workplace, please consult with your agency’s legal counsel.
Here are additional resources to help understand the policy implications of this new law:
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.