WASHINGTON: Employers must disclose pay info in all job postings

On March 30, 2022, Washington Governor Jay Inslee signed Substitute Senate Bill 5761, which requires employers with 15 or more employees to include the wage scale or salary range in each job posting, along with a general description of all benefits and other compensation for the job, effective January 1, 2023. The bill modifies Washington’s Equal Pay and Opportunities Act (WEPA), which already gives applicants who receive job offers from employers with at least 15 employees the right to request the minimum wage or salary for the position. The new bill drops the applicant request process, and instead makes disclosure mandatory in each job posting. The Washington Department of Labor and Industries (L&I) is charged with enforcement of this law, and can assess penalties, interest, and recovery of the costs of investigation and enforcement against employers for violations. Workers may sue noncomplying employers for damages, interest, attorney's fees, and other appropriate relief. Here are the other key details and ambiguities to be aware of in the new bill, along with our recommendations:

Employers covered: Because the WEPA doesn’t specify where covered employers’ 15 employees must be located, we believe you are covered by the law if you employ 15 employees worldwide, and you post a job opening for a position that will be performed in Washington or for which you’re willing to consider candidates from Washington.

Contents of disclosure: Wage scale, salary range, benefits, and other compensation are all undefined in the new bill, so we recommend taking a reasonable approach by providing the full pay range for the role, plus a summary of any bonuses, commissions, health and welfare benefits, pension benefits, or other benefits.

Which postings must include wage and benefit information: The bill defines a posting as “any solicitation intended to recruit job applicants for a specific available position… that includes qualifications for desired applicants,” which means all external postings for specific positions are covered. This appears to mean that a “help wanted” sign in the window wouldn’t trigger a pay disclosure obligation, but a “now hiring drivers with a commercial drivers’ license” might, because it specifies a position and includes a qualification requirement. The bill applies to recruitment conducted directly by an employer or indirectly through a third party, and includes both electronic and hard copy postings.

Internal job postings likely covered: We also recommend including the mandated information for purely internal job postings, although there is some ambiguity as to whether the law requires this. On the one hand, the definition of “posting” is extremely broad; on the other, a separate section of the existing law gives employees who are offered an internal transfer or promotion the right to ask for the wage scale or salary range for the new position, and that section is unchanged by the new bill. Given L&I’s employee-friendly approach to applying the law, the safest approach is to include the information if you choose to post internal job openings.

Remote jobs likely covered: It’s also unclear whether postings that are done without regard to where the employee will work are covered (e.g., an Oregon employer posts a job that can be performed remotely and ends up hiring a Washington employee). With this uncertainty, our recommendation is to add the required information to any job posting if you’re willing to consider Washington candidates, even if you’re also open to hiring applicants from other states. Be aware that attempting to exclude Washington candidates from postings for remote positions may backfire. A similar pay disclosure law took effect in Colorado on January 1, 2021, and some employers tried to avoid the requirements by stating in job ads for remote positions that candidates located in Colorado wouldn’t be considered. The Colorado Department of Labor and Employment didn’t take kindly to that approach and began issuing “compliance assistance letters” telling those employers to fix their job postings.

Tips: If L&I engages in any rulemaking to help clear up some of the ambiguities highlighted above, we’ll be sure to report on those developments. In the meantime, start taking steps now to establish minimum wages or salary ranges for all positions you plan on filling in 2023 or later, so you’re ready when the changes take effect on January 1, 2023. You should also start drafting standard descriptions of your benefit packages (including any bonuses or commissions). Ensure that your human resources and recruitment team all understand the new disclosure requirements and are prepared to implement them when the law takes effect. For more information, see our Legal Guide, Equal Pay: Avoid the Pitfalls. Your Vigilant Law Group employment attorney can also assist you with any questions.