If they haven’t already, employers should ensure that their job postings comply with Washington State’s new pay transparency law, which, in many instances, applies even to businesses outside of the state. The law went into effect January 1, 2023, and Washington now joins a number of other jurisdictions in requiring employers to provide detailed pay and benefit disclosures in their job postings.

Under these new amendments to the state’s Equal Pay and Opportunities Act, job postings from covered employers must disclose the following:

• the wage scale or salary range for the job opening, and
• a general description of all benefits and other compensation to be offered to the hired applicant.

Below are frequently asked questions about the scope and requirements of the new law.

1. Which employers are covered by the new law?

The law covers any employer that meets both of the following criteria:

• The employer has 15 or more employees. Guidance issued by the Washington State Department of Labor and Industries indicates that the 15-employee threshold “includes employees that do not have a physical presence in Washington, if the employer has one or more Washington-based employees.”
• The employer engages in any business, industry, profession, or activity in Washington. The guidance indicates that businesses do not need to have a physical presence in Washington to be covered. If an employer engages in business in Washington or recruits for jobs that could be filled by a Washington-based employee, then the employer would be considered to be engaging in a business, industry, profession, or activity in Washington.

2. What if the job posting is for a position based outside of Washington? And what about remote work positions?

For covered businesses, the requirements generally apply if the job posting is for a position that could be performed by a Washington-based employee. Therefore, postings for remote work that could be performed by a Washington-based employee must comply with the requirements.

3. Can an employer avoid the requirements by excluding Washington applicants?

No. According to the guidance, an employer cannot indicate within a posting that the employer will not accept Washington applicants in order to avoid the new disclosure requirements.

4. What information needs to be included in a job posting?

Wage scale or salary range: The job posting must include the applicable wage scale or salary range, which, according to the guidance, should be based on the employer’s most “reasonable and genuinely expected” range of compensation for the job. The range should extend from the lowest to the highest pay established by the employer prior to publishing the job posting. The range cannot be open-ended (e.g., a posting stating a compensation range of “$60,000-$80,000 per year” would be acceptable, but one stating “$85,000 per year and up” or “up to $30 per hour” would not).

General description of all benefits: The employer must also include a general description of all benefits to be offered, which, according to the guidance, includes items like healthcare benefits, retirement benefits, vacation time or paid time off (PTO), paid holidays, PTO that is more generous than required by law (e.g., paid sick leave accruals and parental leave that exceed statutory minimums), and any other benefits that must be reported for federal tax purposes, such as fringe benefits.

According to the guidance, specific information must be included for certain types of benefits:

• Insurance: All types of insurance offerings should be separately listed, such as medical insurance, vision insurance, dental insurance, life insurance, and disability insurance.
• Retirement plans: All types of retirement plan options should be separately listed, such as 401(k), employer-funded retirement plans, deferred compensation, and other defined benefit or defined contribution plans.
• PTO, vacation, and other leaves: If PTO or vacation is to be offered, or if the job is eligible for other leaves that are more generous than required by law, the job posting must specify the accrual rate or the number of hours/days the applicant would expect to receive (e.g., “8 hours per month” or “12 days per year”).
• Holidays: If paid holidays are offered, the number of paid holidays should be listed (e.g., “10 paid holidays per year”), but the specific names of each holiday do not need to be listed.

General description of other compensation: The job posting must also include a general listing of the categories of any other compensation to be offered, which, according to the guidance, includes items like bonuses, commissions, profit-sharing, stock options, restricted stock units, and other such cash or incentive-based compensation.

Commissions and piece rates: If compensation is commission-based or paid on a piece rate basis, then the range of possible commission rates or the applicable piece rate should be listed in the posting.

5. What if an employer doesn’t have an established wage scale or salary range for the job?

An employer’s lack of an existing wage scale or salary range for a position does not justify noncompliance with the pay transparency requirements. According to the guidance, employers must determine and create a wage scale or salary range prior to publishing the posting.

6. What if an employer ends up offering an applicant a different position than the one for which they applied?

In this case, according to the guidance, the employer should immediately disclose to the applicant the required information for the new job that is being offered, which can be accomplished by providing a copy of the compliant job posting for the new position.

7. If an employer uses recruiters or other outside agencies to publish its job postings, does it need to worry about these requirements?

According to the guidance, the requirements apply regardless of whether the posting is done directly by the employer or indirectly through a third party. Therefore, it is ultimately the responsibility of the employer to ensure that the postings for their job openings are compliant with the new law. Employers should ensure that their recruiters understand and will comply with the requirements of the law.

8. What are the consequences for violations?

Employers with noncompliant job postings can be issued citations and charged monetary fines by the Department of Labor and Industries. They could also potentially face lawsuits from individual applicants.

Next Steps

To the extent they have not already, covered employers should move quickly to comply with Washington’s new wage transparency requirements. Covered employers can review the detailed guidance and examples published by the Department of Labor and Industries and should ensure that their job postings are compliant.

Employers should also confer with counsel to review current job postings and to develop processes and procedures for preparing and publishing future job postings that comply with these new requirements.

For more information, please contact Jason Storck, Joseph Horne, Rachel Herrington, or another attorney in Wilson Sonsini’s employment litigation practice. We are available to assist with advising and counseling on the new law and related matters.