Prior Salary Inquiries by Employers Prohibited in Washington State

On May 9, 2019, Governor Inslee signed the Washington Equal Pay and Opportunities Act (EPOA), which prohibits Washington employers from inquiring into an applicant’s salary history and requires employers to provide wage information to applicants upon request. The new law takes effect July 28, 2019.

Prior Salary Inquiries Prohibited

Washington joins several other states (including Oregon and California) and some cities that prohibit employers from inquiring into an applicant’s wage or salary history. (Read our previous post on the subject here). The stated purpose of these bans is to increase transparency and help eliminate gender-based pay disparities that can follow an employee if starting salary is based on prior salary. The new law amends Washington’s prior equal pay law (which was amended just last year; read our post here). 

Under the new EPOA, an employer cannot seek wage or salary history from any applicant, including both external applicants and current or former employees. In addition, employers cannot require applicants to meet certain salary criteria (meaning employers cannot screen out applicants who do not meet a minimum prior salary threshold).

The law provides two specific exceptions. An employer may confirm an applicant’s prior salary after the employer has made an offer (including compensation) to the applicant. An employer may also confirm prior salary if the applicant voluntarily discloses it, but employers should take care not to ask, suggest, or prompt the applicant to disclose such information.

As a practical matter, the inclusion of current employees in the law could be challenging for employers who already know the employee’s current salary at the time of the offer. In light of the new law, employers should take care to set compensation for a current employee transferring to a new position based on the established salary range for that position, without reference to the employee’s current or prior salary. This means, for example, that an employee moving from an entry-level job into a higher-paying position may receive a larger raise than would normally be given.

Employers Must Provide Applicants with Wage Information upon Request

The law also requires employers with fifteen or more employees to provide applicants with certain salary information upon the applicant’s request after an offer has been made. In this regard the EPOA is similar to a law in California (read our post here), but the EPOA specifies that this information need only be provided after an offer is made. The EPOA also requires disclosure of wage information to a current employee transferring to a new position, not just to external applicants.

For external applicants, the employer must provide “the minimum wage or salary for the position.” For current employees transferring to a new position, the employer must provide “the wage scale or salary range for the employee’s new position.” If the employer does not have a wage scale or salary range for the position, it must provide “the minimum wage or salary expectation set by the employer prior to posting the position.”

Employees Have Private Right of Action and May Receive Statutory Damages

An employee alleging a violation of the EPOA may file a complaint with the Washington Department of Labor and Industries or bring a civil action. A prevailing employee is entitled to both actual damages and statutory damages (equal to actual damages or $5,000, whichever is greater), as well as costs and attorneys’ fees and potentially injunctive relief.

What Employers Should Do Now

• Review and update job applications, postings, and questionnaires. Remove any question that asks for current or past salary or wage.
• Train managers, supervisors, interviewers, and recruiting personnel not to ask questions about salary history.
• Review and update salary ranges and pay scales, if any exist. Employers who do not have pay ranges should set minimum salary expectations prior to posting a new position and be prepared to provide that information to an applicant after an offer has been made.