Washington’s Department of Labor & Industries (LNI) released the final version of its Administrative Policy on the Equal Pay and Opportunities Act to guide employers on the new pay transparency requirements that became effective January 1, 2023.
This policy gives insight into how LNI will interpret, apply, and enforce the new law. Courts can also consider this policy in lawsuits involving the new law. While the new policy provides helpful, clear examples of the language expected for job postings, it also leaves some questions unanswered.
Is there a grace period or other remedy for employers unable to fully comply with all the law’s new requirements by January 1, 2023?
Unfortunately, the final policy does not mention any grace period or other preliminary options to help employers working to comply with the rules by the new year. Instead, the differences between the final version (issued November 30, 2022) and the prior draft version (issued August 22, 2022) appear to be primarily clerical, rather than substantive.
Which employers must comply with this law?
According to LNI’s administrative policy, the law applies to “employers with 15 or more employees, engaging in any business, industry, profession, or activity in Washington.” The 15-employee threshold “includes employers that do not have a physical presence in Washington, if the employer has one or more Washington-based employees.”
Does the new law cover postings for remote jobs?
Yes. The law’s requirements apply to jobs that could be performed in whole or in part in Washington.
Would a note in the job postings that Washington residents will not be considered for the job satisfy the requirements?
The guidance clearly rejects this option as a way to avoid compliance with the law. However, employers are not required to comply with the law for jobs “to be performed entirely outside of Washington” and for “jobs tied to worksites physically located entirely outside of Washington, for example, waitstaff at restaurant locations in other states.” Printed, hard copy postings distributed outside the state do not need to include the salary and other disclosures.
Must pay and benefit information be provided to employees offered a transfer or promotion?
Yes, but only if the employee requests it.
What pay information is required on a job posting?
Each posting must include “the wage scale or salary range and a general description of all the benefits and other compensation for a specific available position to be offered to the hired applicant.”
What if the employer has not established a wage scale or salary range?
One should be created prior to publishing the posting.
What if an employer has a starting rate or range versus a final rate or range?
Both ranges should be included with an explanation that one is the starting range.
What if an employer has a job position with multiple levels and each level has a different pay range?
The range or scale per level must be specified.
While the administrative policy may seem straightforward, it can be difficult to apply in certain circumstances. Employers are encouraged to consult with their Jackson Lewis attorney regarding any questions.