Washington Enacts Salary History Ban

By: James P. Sikora

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Washington recently amended its Equal Pay and Opportunities Act (EPOA), effective July 28, 2019, to generally prohibit employers from inquiring about a job applicant’s wage or salary history and require employers to provide wage and salary information to job applicants and employees in certain circumstances.

The amended EPOA prohibits employers from seeking the wage or salary history of an applicant from the applicant or his or her current or former employer. This prohibition also applies to current employees who apply for new positions with their current employer. The amended EPOA further prohibits employers from requiring that an applicant’s prior wage or salary history meet certain criteria (e.g., a prior salary threshold).

The law contains two exceptions. An employer may confirm an applicant’s wage or salary history (1) if the applicant has voluntarily disclosed his or her wage or salary history, or (2) after the employer has negotiated and made an offer of employment with compensation to the applicant. These provisions of the amended EPOA apply to all Washington employers, regardless of the number of employees.

The amended EPOA also requires employers with 15 or more employees to disclose certain salary information upon the request of a job applicant. More specifically, the employer must provide the minimum wage or salary information for a position upon the request of an applicant. The employer is obligated to provide this information only after making an initial offer of employment to the applicant.

For a current employee who is offered an internal transfer to a new position or promotion, the employer must provide the wage scale or salary range for the employee’s new position upon request of the employee. If the employer does not have a wage scale or salary information for the position at the time of the request, the employer must provide the minimum wage or salary expectation set by the employer prior to posting the position, making a position transfer, or making the promotion.

Employees who are alleging violations of the EPOA may file a complaint with the Washington Department of Labor and Industries or bring a civil action. A prevailing employee may recover actual damages and statutory damages as well as attorneys’ fees and costs.

Employers should consider taking several steps in anticipation of the quickly approaching effective date of the amended EPOA. This includes reviewing job applications and other hiring documents to ensure that any requests for an applicant’s salary or wage history are removed. Employers should also train managers and others involved in the hiring process on the amended EPOA’s prohibitions and requirements. Finally, employers should also consider reviewing salary ranges and pay scales or setting a minimum salary expectation before positing a position to ensure they are able to adequately respond to requests for this information under the EPOA.

For more information, contact attorney James P. Sikora at james.sikora@landerholm.com.

(The above should not be construed as specific legal advice and is intended for general information purposes only).

Veronica Whitney