Published December 5, 2022
The Washington Equal Pay and Opportunities Act (RCW 49.58) was amended effective January 1, 2023 to require that certain information be included in job postings. This memo explains the new requirements including applicability to multi-state advertisements.
Overview
The amendments to the Washington Equal Pay and Opportunities Act require employers with 15 or more employees, engaged in any business, industry, profession or activity in Washington, to include the following in their job postings:
- Wage scale or salary range,
- A general description of all benefits for that position, and
- A general description of all other compensation to be offered to the hired applicant.
Applicability
The new law applies to all employers with 15 or more employees doing business in the state of Washington. It applies to both public and private employers, including the state and any state institution, agency and political subdivision of the state. Employer is defined as:
[A]ny person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees, and includes the state, any state institution, state agency, political subdivisions of the state, and any municipal corporation or quasi-municipal corporation.
The law applies whether the job is posted by the employer directly or through a third party such as a recruiting agency.
Job posting must be kept updated. This includes not only updating the ad if benefits or compensation for the position change, but also updating ads which were posted before January 1st but will continue to run after the new law goes into effect on January 1st.
Job Posting Requirements
Wages:
- The employer must post the salary, hourly rate(s), commissions, and non-discretionary bonuses.
- If a range is posted, it should be the employer’s most reasonable and genuinely expected range of compensation for the job, extending from the lowest to the highest pay established by the employer prior to publishing the job posting.
- If the employer has no previously established scale or range for the position then it should create one prior to publishing the job posting.
- Open-ended ranges (such as $30,000 and up, or up to $29/hour) are not compliant. Both the top and the bottom of the range must be included.
- If the wage scale or salary range changes after a posting has been published, the employer should update the posting to reflect the updated wage scale or salary range.
- If the position could be filled by applicants with various job titles depending on their experience, then the ranges or scales for each potential job title should be included.
- For commission-based pay, the employer should publish the basis and the rate or rate range (percentage or otherwise) used to calculate the commission.
General Description of All Benefits:
- Generally speaking, any benefits that must be reported for federal tax purposes are included.
- This includes, but is not limited to, health care benefits, retirement benefits, any benefits permitting paid days off (including paid sick leave accruals which are more generous that required by law, parental leave, and paid time off or vacation benefits), and any other fringe benefits.
- If an employer includes various types of insurance as part of the benefits package, the employer should list out the types of insurance in the job posting, such as medical insurance, vision insurance, dental insurance, life insurance, and disability insurance.
- If an employer includes various types of retirement options as part of the benefits package, the employer should list the retirement option in the job posting, such as 401k, employer-funded retirement plans, deferred compensation, and other defined benefit or defined contribution plans.
- The posting should include the amount of days or hours the applicant would expect to receive as PTO or vacation time.
- The number of paid holidays per year should be listed. The employer need not list each paid holiday.
- The benefits listed must apply to the specific position advertised.
- Employers must include a general description of the benefits in the ad, but may include a link to a description of benefits in lieu of a detailed listing all benefits in the ad, so long as the linked page is functional, up-to-date, and includes the information required above.
Other Compensation:
- This includes, but is not limited to, discretionary bonuses, commissions, profit sharing, stock options, or other forms of compensation that would be offered to the hired applicant in addition to their established salary range or wage scale.
What is a ‘job 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, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.
General statements of ‘help wanted,’ without qualifications for desired applicants, are not considered job postings. Examples of things which are not considered job postings for the purpose of the EPOA are window signs reading “Help Wanted,” website banners advertising “Now Hiring” without more detail, or social media posts reading “Manufacturing jobs available; apply now on-line” without information about the qualifications for the jobs. These types of advertisements do not need to include wages, benefits or other compensation.
What about out-of-state employers or multi-state job postings?
- The posting requirement applies to out-of-state employers and out-of-state job postings if the job could be filled by an employee working in Washington (for example, if the job is to be performed remotely.)
- An employer cannot avoid disclosing wage and salary information requirements by indicating within a posting that the employer will not accept Washington applicants.
- Out of state postings need not comply with the law if the job will be performed entirely outside the state of Washington, even if the posting is on-line and could reach Washington workers. (This exception is applied narrowly and applies only to jobs tied to worksites physically located outside the state.)
- Employers do not need to include the posting requirements in printed hard copy postings which are posted entirely and exclusively outside of the state of Washington.
Other States with similar laws or requirements
California: Beginning in January 2023, employers with 15+ employees must disclose the wage scale or salary range on every job posting.
Colorado: Employers must include in each job posting (1) base compensation, (2) a general description of any bonuses, commissions, or other compensation; and (3) a general description of all benefits the employer is offering for the position.
New York:
Ithaca: Must disclose in job advertisements the minimum and maximum hourly or salary compensation offered for new hires, transfers, and promotions.
New York City: Employers with four or more workers must disclose in job listings the minimum and maximum annual salary or hourly wage offered for new hires, transfers, and promotions.
Westchester County: Must disclose in job postings the minimum and maximum hourly or salary compensation offered for new hires, transfers, and promotions.
Consequences of Violations
The law provides that applicants may sue for actual damages or statutory damages of $5,000.00, whichever is greater, along with interest and attorneys’ fees. L&I may also investigate upon receiving a complaint. If L&I determines that a violation occurred, the department shall attempt to resolve the violation by conference and conciliation, and a citation and fine may be issued if no agreement is reached to resolve the violation.
For questions, please contact any member of Ryan Swanson’s Employment Rights, Benefits & Labor group.
