Washington Gov. Bob Ferguson is considering a bill that would amend the state’s wage disclosure requirements in the Equal Pay and Opportunities Act (EPOA) and implement major changes regarding potential liability for employers and the amount of damages available to job applicants.
The state Senate overwhelmingly passed Substitute Senate Bill 5408 (SSB 5408), as amended by the state House, on April 22, 2025. The bill, among other things, amends the EPOA to require a notice and cure period — until July 27, 2027 — and revises the available remedies, providing welcome relief to employers.
Under SSB 5408, the EPOA would leave intact the requirement that Washington employers post wage and salary information, and information about benefits and other compensation in their job postings. Thus, employers should continue to diligently review all their job postings to ensure compliance.
In the next few months, the Washington State Department of Labor & Industries (L&I) may draft new regulations to clarify the scope and enforcement of the EPOA.
EPOA Background
Washington amended its EPOA in March 2022 to require employers with 15 or more employees to include salary ranges or wage scales, benefits, and other compensation information in job postings beginning Jan. 1, 2023. The statutory penalty for noncompliance was significant — $5,000 per applicant (or actual damages, if higher) for each deficient job posting. As a result of these mandatory penalties and damages, a single job posting with a few hundred applicants could result in millions of dollars in liability for the employer, which has contributed to the filing of hundreds of class action lawsuits in Washington state and federal courts alleging EPOA pay transparency violations.
Summary of Key Changes to EPOA
Notice & Cure Requirement: For jobs posted after the passage of the amendment, until July 27, 2027, applicants must provide written notice to the employer of a potential job posting violation. Upon providing written notice, the employer has five business days to correct the posting. If the posting is hosted by a third-party service, the employer must notify the hosting service and demand the posting(s) be fixed. If the posting is fixed in time, no damages or penalties may be assessed against the employer by either a court or the Washington State Department of Labor & Industries (L&I).
Nonconsensual Postings: Employers will not be liable for any postings that are “digitally replicated and published without an employer’s consent.” This fix helps employers avoid liability when their job postings are “scraped” by automated systems and reposted on third-party job boards without their knowledge.
Remedies: The reference to general remedies in RCW 49.58.060 and .070 that allowed for $5,000 in penalties for each violation (or actual damages) was eliminated. The following exclusive remedies for violations of the job posting provision will take their place:
- Private Civil Action: Remedies for applicants who bring a private civil action will now be variable and depend on the facts. The amendment sets a floor of $100, and a ceiling of $5,000 per violation. Several factors will need to be analyzed to determine the amount of damages: (1) whether the violation was willful or repeated; (2) the size of the employer; (3) the amount necessary to deter future noncompliance by the employer; (4) whether the damages comport with the purposes of the law; and (5) any other factor the court deems appropriate. Courts will remain empowered to grant “actual damages,” attorneys’ fees, and other equitable relief.
- Administrative Enforcement: The amendment sets up an administrative enforcement process and grants L&I authority to investigate and assess penalties for noncompliance. L&I must first attempt to resolve any violation with conciliation. If conciliation fails, L&I may issue a citation and order payment to applicants within the same range as the private civil action ($100-$5,000). In addition, administrative penalties can be assessed at $500 for the first violation and $1,000 for repeat violations, plus “actual damages” and other equitable relief.
- Exclusive Remedies: Applicants can pursue both administrative and civil remedies. However, they will only be able to recover damages from either the administrative action or a court, not both.
Statute of Limitations: Applicants will have three years to file a suit against an employer. Filing of a civil suit will terminate any ongoing administrative process.
What’s Next?
The amended bill was sent to Gov. Ferguson’s desk on April 27, 2025. Assuming the bill is signed, the effective date of SSB 5408 will be 90 days from the closure of the current legislative session which adjourned April 27.
The amendment, however, does not apply retroactively. Thus, Washington employers who are currently defending against this type of claim will not be able to rely on the amended provisions as a defense. There also may be an uptick in EPOA job posting claims in the months before the amendments take effect. Finally, the amendment still does not address one of the major questions that has driven the significant class litigation in this area to date: whether an applicant needs to have a “bona fide” interest in the job to which they apply, or, can the applicant apply to a job posting (or multiple postings) with no intention of accepting the job, if offered, and still be eligible for damages in a lawsuit. This question will likely be answered in the next few months by the Washington Supreme Court, which we wrote about in a previous alert.
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