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Quick Hits
- Under SSB 55408, which amends the Equal Pay and Opportunities Act, Washington employers may now list a fixed pay amount instead of a wage range if only one amount is offered, including for internal transfers; postings that are replicated without employer consent are not considered official job postings.
- Between the law’s effective date and July 27, 2027, employers have five business days to correct a noncompliant posting after receiving written notice and can avoid penalties if the posting is timely corrected.
- The amended law further defines and clarifies two separate remedies, each of which is exclusive: administrative remedies (civil penalties up to $1,000 and statutory damages between $100 and $5,000 per violation) or remedies via private civil actions, including statutory damages between $100 and $5,000 per violation. Each permits statutory damages and considers factors such as willfulness and employer size.
Key Updates to RCW 49.58.110
The key updates to RCW 49.58.110 follow below.
Wage Scale or Salary Range
The wording of the previous statute appeared to require a “wage scale or salary range,” even if all individuals employed in that position had the same pay or the same starting pay. Amended SSB 5408 permits employers that offer only a fixed amount of pay to list only that fixed amount, and they are not required to provide a wage scale or salary range that does not really exist. This also applies for internal transfers where the employer only offers a fixed wage amount.
Definition of “Posting”
Amended SSB 5408 makes clear that a posting does not include a “solicitation for recruiting job applicants that is digitally replicated and published without an employer’s consent.”
Cure Period
For postings between the effective date of Amended SSB 5408 and July 27, 2027, employers must be given the opportunity to correct a job posting that does not meet the requirements of the law. Under the new law, any person may provide “written notice” to the employer that they believe a posting fails to comply with the job pay transparency requirements, and the employer has five (5) business days from the receipt of the written notice to correct the posting and notify any third-party posting entity to correct the posting. The cure opportunity must be provided before the individual may seek any remedy under the law, and if the posting is timely cured, no damages, penalties, or other relief may be assessed.
Damages/Relief
RCW 49.58.110 previously relied on damages sections that arose from the equal pay law as it existed prior to the job posting wage transparency laws. Amended SSB 5408 now further defines and clarifies two separate remedies, each of which is exclusive.
- Administrative remedies. Amended SSB 5408 permits an investigation, encourages conference and conciliation, and, if that fails, permits the director to assess a civil penalty of $500 for a first violation and up to $1,000 for repeat violations, or up to ten percent of the damages. In addition to the civil penalty, costs, and other relief for the affected job applicant or employee, the department may “order the employer to pay each affected job applicant or employee statutory damages of no less than $100 and no more than $5,000 per violation.” Amended SSB 5408 provides factors to be considered when assessing the penalty, including the willfulness of the violation or whether it was a repeated violation; the employer’s size; the amount necessary to deter noncompliance; the purposes of the law; and other factors deemed appropriate.
- Private civil action. Amended SSB 5408 leaves in place an affected job applicant or employee’s right to bring a private right of action. The new law, however, provides that an affected job applicant or employee may be “entitled to statutory damages of no less than $100 and no more than $5,000 per violation, plus reasonable attorneys’ fees and costs.” The court, in assessing statutory damages, may consider the same factors as the agency.
Next Steps
Ogletree Deakins’ Pay Equity Practice Group and Seattle office will continue to evaluate how these changes affect the current litigation in Washington State, monitor the rules process as the Department of Labor and Industries begins developing rules governing the interpretation and enforcement of these changes, and will provide updates on the Pay Equity and Washington blogs as additional information becomes available.
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