Natalya Belonozhko, Horenstein Law Group PLLC
July 19, 2019
In March 2018, Washington state expanded its equal pay law by prohibiting employers from paying employees less than “similarly employed” employees of a different gender, unless the pay differential is based in good faith and on bona fide factors, other than gender, which are employment-related, consistent with business necessity and account for the entire pay differential.
Bona fide factors include education, training, experience, seniority and merit systems, production-based earning systems or regional differences.
Differences in prior wages or salaries of employees is not a bona fide factor. Under the law, employees are “similarly employed” if they work for the same employer, the performance of the job requires similar skills, effort and responsibility and the jobs are performed under similar working conditions.
Ban on Requesting Salary History
In May 2019, Washington legislation updated the equal pay law by adding a salary history ban applicable to all Washington employers regardless of size so that employers cannot:
- Inquire about the wage or salary history of an applicant from the applicant or the applicant’s former employers; or
- Require that an applicant’s prior wage or salary history meet certain criteria.
There are two exceptions to the ban: The employer can confirm an applicant’s wage or salary history:
(1) if the applicant voluntarily discloses this information
(2) after an offer of employment with compensation is negotiated with the applicant.
Requirement of Providing Wage and Salary Information to Applicants and Employees
The updated law provides that there are two circumstances in which employers are required to provide wage and salary information for its positions:
(1) after the employer makes an offer to an applicant, upon the applicant’s request, the employer must provide the minimum wage or salary for the position for which the applicant is applying
(2) if a current employee is offered an internal transfer to a new position or a promotion, upon the employee’s request, the employer must provide the wage scale or salary range for the employee’s new position, or the minimum wage or salary expectations set by the employer prior to posting the position, making a position transfer or making the promotion, if no wage scale or salary range exists.
The wage and salary information disclosure requirements apply only to Washington employers with 15 or more employees.
The damages for violations by employers are actual damages or $5,000 plus interest, costs and reasonable attorneys’ fees.
The updated law will take effect July 28, 2019. Employers should review their job applications, interviewing processes and onboarding documents and remove requests or references to applicants’ wage and salary histories.