Washington State Supreme Court Broadly Defines Job Applicants Covered by Pay Transparency Law

Quick Hits

• The Washington State Supreme Court recently ruled that job applicants can sue for violations of the state’s pay transparency law without having to show they applied in good faith or that they were “bona fide” applicants. All that is required is they applied to a specific job posting.
• Washington’s pay transparency law requires employers to include wage scale, salary range, and benefits information in all job listings.

With hundreds of purported class action lawsuits filed primarily by a few serial plaintiffs, many of which were stayed, parties have been waiting for the Washington State Supreme Court to opine on who is a job applicant under the Washington Equal Pay and Opportunities Act (EPOA). These lawsuits, such as the Branson lawsuit, seek statutory damages of $5,000 per job applicant.

In a class action, workers sued Washington Fine Wine & Spirits, which does business as Total Wine and More, for not including a salary or wage range in job listings. The liquor retailer argued that the statute only intended to protect bone-fide or good-faith job applicants, meaning those who applied for a job with a genuine interest in obtaining that job. The company expressed concerns that many unqualified individuals could apply for jobs just to file suit and get the remedy. However, the plaintiffs argued that the law protects anyone who applied for the job.

In a 6-3 majority decision, the state’s high court, relying on the plain and ordinary meaning of “job applicant,” concluded that an individual does not have to show that he or she is a “bone-fide” or “good-faith” job applicant. Instead, the court found that a job applicant is any individual who “submits a formal application or request for a job,” regardless of the applicant’s subjective intent to obtain employment.

The dissent, however, argued that the majority stretched the meaning of “job applicant” to include even those who suffered no harm, which does not comport with the legislature’s intent to protect Washington workers seeking job opportunities. The dissent also recognized the significant risk employers could face as a result of the majority’s decision, stating that “employers could be exposed to nearly limitless class-action liability for a single noncompliant jo posting.”

Next Steps

In recent years, lawmakers in fourteen states and Washington, D.C., have passed pay transparency laws to reduce longstanding pay disparities across gender and racial groups. Employers in Washington State may wish to carefully review their existing and future job postings to ensure compliance with state pay transparency laws.

The state legislature recently amended the EPOA to include a five-day cure period following notice of a noncompliant posting. To avoid notice not reaching the appropriate person, employers may wish to consider adding a sentence to job postings with an email address to which job applicants can send notices about noncompliance.

Ogletree Deakins will continue to monitor developments and will provide updates on the Class Action, Pay Equity, Retail, Wage and Hour, and Washington blogs as new information becomes available.

The Ogletree Deakins Client Portal tracks developments and provides real-time updates on Pay Transparency and Washington employment laws, including the Washington Pay Transparency law. Full law summaries are available for Premium-level subscribers. Snapshots and Updates are available for all registered client-users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Adam T. Pankratz is a shareholder in Ogletree Deakins’ Seattle office.

Mathew A. Parker is a shareholder in Ogletree Deakins’ Columbus office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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