On August 20, 2024, Western District of Washington Judge John H. Chun asked the Washington Supreme Court to answer the question of what a party must prove to be considered a "job applicant" for the purposes of a pay transparency claim under the Equal Pay and Opportunities Act (EPOA).
Since June 2023, there have been over 100 purported class-action lawsuits filed alleging that employers failed to disclose wage and salary ranges to applicants in job postings in alleged violation of the EPOA. As described in our prior post, modifications to the law require all employers since January 1, 2023 with "15 or more employees, engaging in any business, industry, profession, or activity in Washington" to disclose a wage scale or salary range for any new job posting. A "posting" means any solicitation aimed at recruiting candidates for a specific job opening, whether conducted directly by the employer or indirectly through a third party. This includes both electronic and printed job postings that outline the qualifications required for applicants. Employers must include both the reasonable and expected bottom and top range for wages and salaries as well as a general description of benefits.
In Branson, et al. v. Washington Fine Wines & Spirits, LLC, and other similar cases, defendants have argued that the plaintiffs did not apply to the postings with the intent to gain actual employment. On August 16, 2024, Judge Chun, sua sponte, ordered the parties to submit briefing on two issues: (1) their respective positions on whether the Court should certify a question to the Washington Supreme Court regarding the definition of "job applicant;" and (2) if the Court decides to certify the question, what the proposed wording of that question should be. After reviewing briefs from the parties, Judge Chun certified the following question to the Washington Supreme Court:
"What must a plaintiff prove to be deemed a 'job applicant' within the meaning of RCW 49.58.110(4)? For example, must they prove that they are a 'bona fide' applicant?"
The Court's order notes that Chapter 49.58 RCW does not define "job applicant," nor does any case law specifically address the term. Judge Chun highlighted that the defendants argued the plaintiffs were not "bona fide" job applicants and therefore should not be entitled to pursue relief under the EPOA. The Department of L&I, charged with overseeing the EPOA, has provided guidance indicating that it believes an applicant must be "bona fide." By contrast, plaintiffs' counsel argues that anyone who applies is entitled to a penalty under a strict liability standard. Given the unsettled nature of the requirement under the EPOA, Judge Chun determined that resolving the definition of "job applicant" is essential for the disposition of Branson.
The certified question, along with several pleadings from the docket, has now been submitted to the Washington Supreme Court. The Branson matter has been stayed pending the Supreme Court's decision. While the timeline for the Supreme Court's decision on this question is currently unknown, the Supreme Court's answer to this question will significantly impact the hundreds of other cases currently pending in the federal and state courts in Washington.
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