EMPLOYER’S DUTY TO DISCLOSE SALARY RANGES IN JOB POSTINGS

Effective January 1, 2023, many Washington employers will be required to make affirmative compensation-based disclosures to job applicants and existing employees. Senate Bill 5761, which amended the Washington Equal Pay and Opportunity Act, was signed into law on March 30, 2022. The new law requires all employers with fifteen or more employees to disclose the wage scale or salary range, along with a general description of all benefits and other compensation, in every job posting.

While this new law requires an affirmative disclosure of wage, salary and benefit information in job postings, it left unchanged an employer’s obligation to provide the same information to employees who are offered either new positions or promotions within the company, only when requested.

The new law defines “posting” to include both written and electronic job solicitations. Specifically, “posting” is defined as “any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third-party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.” The new law does not define “wage scale or salary range” or “benefits and all other compensation.” To date, the Washington State Department of Labor & Industries has not issued further guidance with respect to those terms or other aspects of the law.

Going forward, employers should keep in mind several things:

  • Review and/or set standard salary ranges for all existing positions and review the relevant factors your organization relies on for determining compensation.
  • Those organizations that have employees in multiple states should consider a national policy for salary transparency.
  • Develop a process for consistency when publishing information in connection with both internal and external job postings.

The Equal Pay and Opportunity Act prohibits gender pay discrimination and seeks to promote fairness among employees by addressing business practices that contribute to income disparities between genders. Acceptable reasons for a difference in pay include:

  • Differences in education, training, or experience.
  • Seniority.
  • Merit/work performance.
  • Measuring earnings by quantity or quality of production.
  • Regional differences in compensation.
  • Differences in local minimum wage requirements.
  • Job related factors consistent with business need.

An employer bares the burden of proof to justify why pay differences exist. An employee’s previous wage or salary history cannot be used to justify gender pay differences.