The Washington Department of Labor and Industries (L&I) recently released a new Administrative Policy (ES.E.1) that provides guidance on new job posting requirements. As we previously reported, employers with 15 or more employees must include specific information on wages and benefits in all job postings beginning January 1, 2023. The Administrative Policy provides informal guidance as to how L&I interprets and plans to enforce the law and includes specific examples to address some frequently asked questions. There are no official regulations in place to guide further interpretation of the law, which is part of Washington’s Equal Pay and Opportunities Act. The Administrative Policy clarifies:
Employers covered: All employers with 15 or more employees, engaging in any business, industry, profession, or activity in Washington must comply with the job posting requirements when recruiting Washington-based employees. Simply recruiting for jobs that could be filled by a Washington-based employee qualifies as such an activity. The policy also explains, “The ‘15 or more employees’ threshold includes employees that do not have a physical presence in Washington, if the employer has one or more Washington-based employees. See ES.A.13, ‘Minimum Wage Act- Washington Based Employee’ for a description of the factors the department applies to determine whether an employer has Washington-based employee(s).” For out-of-state employers with 15 or more employees who don’t (yet) have any Washington-based employees and who don’t engage in any business, industry, profession, or activity in Washington, L&I’s position on employer coverage is somewhat unclear at this time. A court could also have a different analysis. Either way, it’s possible that the act of recruiting Washington-based employees could be enough to pull those employers into coverage. Contact your Vigilant Law Group employment attorney if you need guidance.
Definition of applicant: A person is only considered an “applicant” for the specific posting(s) they applied for, not for every available job of the employer.
Contents of disclosure:
- Wage scale, salary range, and other compensation. If you have a starting pay range, you must include both the starting pay range and regular pay range. You should clearly state the range’s minimum and maximum. Open-ended phrases, such as “up to $60,000” or “$60,000 and up” aren’t acceptable. If the job opening could be filled by various job titles within a classification, then all job titles and corresponding wage ranges should be included in the job posting. Examples of other compensation to include in the job posting include the option to purchase company stock, ability to receive annual bonuses, and the ability to participate in profit sharing.
- Summary of any bonuses, commissions, health and welfare benefits, pension benefits, or other benefits. A general description of all benefits should provide the applicant with your most reasonable and genuinely expected benefits offered for the specific available position. This means listing the types of insurances offered, any bonuses (but no detailed description required), types of pension/retirement benefits, paid leaves (vacation, paid time off (PTO), and paid sick leave (PSL)), and holidays. You must include the amount of vacation/PTO offered and the amount of PSL if the amount is more generous than that required by law. The number of holidays must also be included, although you don’t have to list each specific holiday. For electronic postings, you may provide general information about benefits, with hyperlinks to more detailed information. As the employer, you are ultimately responsible for ensuring continuous accuracy of the information and functionality of any links, even if you outsource these responsibilities to third-party administrators.
Which postings must include wage and benefits information: Job postings, both internal and external, must include wage and benefits information when the posting includes qualifications for desired applicants for a specific position. L&I defines “qualifications” to include “specific knowledge, skills, or abilities requested of the applicant for suitability of the position.” The Administrative Policy provides multiple examples of what qualifies as a covered job posting. For jobs performed totally outside of Washington, wage and benefits information doesn’t have to be included in the job posting even if it reaches Washington applicants. Keep in mind that the law applies to recruitment conducted directly by an employer or indirectly through a third party and includes both electronic and hard copy postings.
Remote jobs covered: Employers must comply with Washington’s disclosure requirements in postings for remote work that could be performed by a Washington-based employee. An employer cannot avoid disclosing wage and benefits information by indicating within a posting that it won’t accept Washington applicants.
Tips: Prepare standard descriptions of your benefits packages now (including any bonuses, commissions, insurances, and leave amounts), and prepare to update or repost any current job postings by January 1, 2023, to include this required information. For discretionary bonuses, we recommend you state that it’s discretionary. Ensure that your human resources and recruitment team all understand the new disclosure requirements and are prepared to implement them. If you choose to link to more detailed information, develop a procedure for routinely ensuring the links continue to work correctly. For more information, see our Legal Guide, Equal Pay: Avoid the Pitfalls and sign up for one of L&I’s “Job Posting Transparency” webinars on the following dates: December 19, 20, 21, 22; January 12; and February 9. Your Vigilant Law Group employment attorney can also assist you with any questions.