Washington Legislature Considers Prospective Notice and Cure Period for Wage Transparency Claims

Washington's Legislature finally took steps to help employers and mitigate against the unanticipated and harsh effects of Washington's job posting requirements that went into effect in January 2023. Late Tuesday night, the House passed an important amendment to the Equal Pay Act that will give employers prospective relief from the litany of wage transparency class actions that continue to be filed on behalf of applicants who apply to a job posting that does not include a pay range. 

Penalties Under the Equal Pay Act

As it stands, the Equal Pay Act requires employers with more than 15 employees to include pay ranges in all job postings or be subject to steep damages for not doing so. Under the current law, employees may bring a civil action against an employer for not including the pay range in the job posting for actual damages; statutory damages equal to the actual damages or $5,000, whichever is greater; interest of 1% per month on all compensation owed; and costs and reasonable attorneys' fees. The court may also order reinstatement and injunctive relief. 

Amendment Includes Cure Period and Other Updates

The new amendment, which is still pending Senate approval and the governor's signature, will allow employers an opportunity to cure any deficient job posting before any damages can be imposed. Under the House amendment, Employers will now have five days from the time they are notified of a deficient job posting to fix the posting, and if they do so, neither the Department of Labor and Industries nor the courts will assess any penalties, damages, or other relief. The Senate previously passed an amendment that would allow for a fourteen-day cure period and sent the amendment to the House for a vote. The House then made changes to the amendment before it was passed, including shrinking the cure period to five days. This means, the amendment must again be approved by the Senate before it goes to the governor for signature. If agreed by the Senate and signed by the governor, this five-day opportunity to cure will only be available until July 27, 2027, and it is not retroactive. 

The amendment also specifically excludes claims relating to job postings that were digitally replicated and published without the employer's consent. This is also a positive development for employers as many are currently facing lawsuits where the plaintiffs are claiming damages for deficient job posting that were posted by third parties without the consent of the employer.

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We will provide an update once the Senate approves, the governor signs the bill, and an effective date is identified. For more information on Washington's pay transparency law, please contact a Davis Wright Tremaine employment attorney.