Key Takeaways
On May 20, 2025, Washington Governor Bob Ferguson signed into law Senate Bill 5408 to amend the state’s Equal Pay and Opportunities Act (EPOA). SB 5408 makes significant changes to the EPOA, including by clarifying the potential statutory damages and easing compliance for employers by providing a limited notice and cure period for alleged violations. The amendments will go into effect on July 27, 2025.
Since January 1, 2023, the EPOA has required employers who engage in business in Washington state to include pay ranges and benefits information in their job postings. The EPOA allows employees and applicants to sue for actual damages, statutory damages, and attorneys’ fees. Previously, employees and applicants could seek statutory damages of $5,000 even if they suffered no actual damages and did not provide the employer with advance notice and an opportunity to cure a deficient posting. This led to class-action law firms filing hundreds of lawsuits under the EPOA since 2023. Many have been filed on behalf of purported “applicants” who appear to have little genuine interest in employment and, instead, submitted online applications solely to trigger statutory damages and attorneys’ fees claims for technical violations. (Many of these lawsuits have been stayed pending the Washington Supreme Court’s decision in Branson v. Washington Fine Wines, discussed in our October Update, which should resolve whether only a “bona fide” applicant can sue under the EPOA.)
SB 5408 maintains the requirement for employers to disclose pay ranges and benefits information in their job postings but enacts significant changes to the procedures and potential damages, including:
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Notice and cure period. For openings posted between July 27, 2025, and July 27, 2027, employers must be given the opportunity to correct a posting before an applicant can seek remedies for alleged EPOA violations. Any person may provide written notice to an employer alleging that the employer’s posting does not comply with the statute’s requirements. If the employer receives notice from any person as to a particular posting and corrects the posting within five business days, then no damages or penalties may be assessed against the employer. Employers also must contact any applicable third-party posting entities to correct the job posting within the five-day cure period.
This temporary grace period expires on July 27, 2027.
- Unauthorized third-party posting. SB 5408 clarifies that employers cannot be held liable for third-party postings that are digitally replicated and published without an employer’s consent.
- Fixed-wage positions. Where the employer is offering a fixed wage for a position, the amendment now allows employers to disclose the fixed wage amount rather than a salary range or scale.
- Remedies/damages. The amendment removes language that allowed applicants to seek statutory damages of $5,000 or actual damages, whichever was greater. The following remedies took the place of this language:
- For private civil actions. Prevailing applicants are entitled to statutory damages of no less than $100 and no more than $5,000 per violation, plus reasonable attorneys’ fees. In determining the amount of statutory damages, courts will consider several factors, including the size of the employer, whether the violation was committed willfully, and whether it was a repeat violation. The amendment provides that courts may still order actual damages if they deem it appropriate.
- Administrative enforcement. The Department of Labor and Industries (L&I) has authority to investigate and assess penalties for violations of the statute. L&I must first attempt to resolve a violation by conference or conciliation. If no agreement is reached, L&I may issue a citation and order the employer to pay each affected applicant statutory damages of no less than $100 and no more than $5,000 per violation. Additionally, L&I may assess a civil penalty of up to $500 for a first violation and up to $1,000 for a repeat violation. L&I also has the authority to order “actual damages” or other appropriate relief.
- Exclusive remedies. Applicants can pursue damages for administrative remedies or civil remedies but cannot be awarded both.
Notably, the amendment does not expressly address whether an applicant must be a “bona fide” applicant (the question to be decided in Branson).
Takeaways
In order to take advantage of the notice and cure period, companies should be prepared to act quickly to correct job postings within five business days after receiving written notice from an applicant. Although the new law may ease some burden on companies, the core job transparency requirements of the EPOA remain intact. Companies should continually refine their EPOA compliance strategy with the assistance of trusted counsel.
As discussed, the scope of future EPOA job posting lawsuits remains uncertain while the Washington Supreme Court considers whether job applicants must be a “bona fide” applicant to bring a lawsuit. There is also potential for litigation to clarify aspects of the amendment, including over what constitutes sufficient notice to trigger the cure period, whether the maximum statutory damages of $5,000 applies per posting or per applicant, and if aspects of the amendments should apply to existing lawsuits as only the section addressing the penalty range is expressly prospective.
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