On May 9, 2019, Washington Governor Jay Inslee signed House Bill 1696, the state's most recent pay equity legislation, which the bill claims is an "additional step towards gender equality."1 Washington previously expanded its equal pay law in March 2018 when it passed the Equal Pay and Opportunities Act (EPOA).2 The new amendments to the EPOA generally prohibit employer inquiries about job applicants' wage or salary history. The amendments also require employers to provide wage and salary information to job applicants and current employees in certain circumstances. Washington is the third state on the Pacific Coast to pass legislation prohibiting employer inquiries into applicant salary history, following California and Oregon.
The newly amended EPOA bars employers from "seeking" a job applicant's "wage or salary history" directly from the job applicant, or indirectly through the applicant's employer. However, there are two exceptions to this general prohibition. First, an employer may confirm an applicant's salary history where the applicant has "voluntarily disclosed" his or her salary history. Second, an employer may confirm the applicant's salary history after the employer has negotiated with the applicant and made an offer of employment, including compensation.3
Similar to California's Equal Pay Act, Washington's amended EPOA also provides that an employer must provide to a job applicant' "the minimum wage or salary" for the position sought, when requested. Importantly, however, an employer is required to provide wage or salary information to an applicant only after the employer has provided the applicant with an initial offer of employment, unlike the law in California.4
The amended EPOA also requires employers to provide a "wage scale or salary range" to a current employee when an employer offers the employee an internal transfer, a new position, or a promotion, and the employee requests this information. The law clarifies that if no wage scale or salary range exists, the employer must instead provide "the minimum wage or salary expectation" that was set by the employer prior to posting the position, or that was set prior to the employer's offering the transfer or promotion to the current employee. The amendments to EPOA do not define these terms or explain the differences in terminology used for job applicants as compared to current employees.
The amendments to the EPOA take effect on July 28, 2019. The salary history ban applies to all Washington employers, regardless of size. The requirement to disclose salary information to certain applicants and employees applies only to Washington employers with 15 or more employees.
Washington employers are advised to review job applications and other hiring documentation to confirm that any requests, or references, to job applicants' salary history are removed. Employers are also advised to evaluate their compensation practices to ensure that they will be able to provide wage scales or salary ranges to applicants and employees upon request. Employers should also consider training managers and recruiters about the law's prohibitions and requirements.
Footnotes
1 House Bill 1696, available at http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/House%20Passed%20Legislature/1696-S.PL.pdf.
2 See Breanne Martell and Dan Thieme, New Pay Equity Law in Washington State, Littler ASAP (Apr. 16, 2018).
3 For purposes of this section, "compensation" is defined as "discretionary and nondiscretionary wages and benefits provided by an employer to an employee as a result of the employment relationship." Wash. Rev. Code Ann. § 49.58.010.
4 See Alexandra Hemenway, California Provides Guidance Regarding Its Salary History Ban, Littler ASAP (Aug. 7, 2018), regarding the different approach taken by California.
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