The Washington Equal Pay and Opportunities Act (EPOA) has been a hot topic after the filing of hundreds of putative class action lawsuits alleging that employers violated the EPOA by failing to include pay ranges and benefits information in their job postings. Since the pay transparency provisions of the EPOA took effect on January 1, 2023, many of the putative class action lawsuits have been brought by a few serial plaintiffs. To defend against these lawsuits, many defendants argued that only those persons who applied to job postings in "good faith" or as a "bona fide" applicant could seek remedies under the EPOA.
One EPOA case, Branson v. Washington Fine Wine & Spirits, reached the Washington Supreme Court to answer the following certified question from the Western District of Washington:
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?
In a 6-3 decision, the Washington Supreme Court held:
A job applicant need not prove they are a “bona fide” applicant to be deemed a “job applicant.” Rather, in accordance with the plain language of RCW 49.58.110(4), a person must apply to any solicitation intended to recruit job applicants for a specific available position to be considered a “job applicant,” regardless of the person’s subjective intent in applying for the specific position.
The Supreme Court reasoned that "[t]he plain language of the term 'job applicant' means a person who applies to a job posting, regardless of their subjective intent in doing so." Reasoning further, the Supreme Court explained that the legislative history of the EPOA supports a broad interpretation of "job applicant."
The dissent explained its view of the decision, arguing that "[t]he majority’s definition of “job applicant” misconstrues those sources, misstates the legislature’s intent, and ends up stretching the meaning of 'job applicant' to include even plaintiffs who suffered no harm—a class that no legislator sought to protect." Arguing further, the dissent warned of "absurd and unintended consequences" of the majority's decision, which:
incentivizes persons with no interest in getting a job offer to search for noncompliant job postings for the purpose of obtaining a statutory damages award. Depending on how popular a job posting is, employers could be exposed to nearly limitless class action liability for a single noncompliant job posting.
We will continue to monitor developments following Branson and provide updates on further legal challenges to the way the EPOA is being applied in putative class actions.
