Washington Amends EPOA, Bringing More Balance to Employer Job Posting Obligations

On May 20, 2025, Governor Bob Ferguson signed Substitute Senate Bill 5408 (SSB 5408), enacting important amendments to the Washington Equal Pay and Opportunities Act (EPOA). The EPOA has been a hot topic in Washington after hundreds of class action lawsuits alleged that employers violated the EPOA by failing to include pay ranges and benefits information in their job postings. Our February update described the EPOA landscape, including the Branson v. Washington Fine Wines case before the Washington Supreme Court. The Branson case will decide whether job applicants must be a "bona fide" applicant to bring a lawsuit.

While we wait for the Branson ruling, the Legislature enacted SSB 5408 to clarify and revise four key parts of the EPOA:

1. Cure Period. Prior to SSB 5408, a job applicant was not required to notify an employer that a job posting omitted pay or benefits information. It was common for job applicants to bring their lawsuits mere days after finding and applying to allegedly deficient job postings. SSB 5408 changes that dynamic, and now prohibits job applicants from seeking EPOA remedies until the employer has received written notice and an opportunity to cure defects. Any individual may deliver the written notice to the employer; the notice need not be delivered by the would-be-applicant. The cure period is short, giving the employer five business days to cure after receiving the notice. If the defect is in a third-party posting, the employer satisfies their cure obligation by contacting the third-party entity with a demand to correct the posting. The cure provision sunsets on July 27, 2027.
2. Sliding Scale Damages. Previously, the EPOA provided for statutory damages of $5,000. SSB sets statutory damages on a sliding scale between $100 and $5,000, based on several factors: "[w]hether the violation was committed willfully or the violation is a repeat violation; the size of the employer; the amount necessary to deter future noncompliance; the purposes of this chapter; and any other factor deemed appropriate by the court."
3. Fixed Pay Rate. The EPOA uses the phrase "wage scale or salary range." Based on this language, it was not clear whether employers could list a flat pay rate, such as if the position only paid minimum wage. With SSB 5408, if an employer is only offering a fixed wage, then a job posting may disclose only that fixed amount.
4. Third Party Postings. SSB 5408 clarifies that the definition of "posting" does not include a "solicitation for recruiting job applicants that is digitally replicated and published without an employer's consent."

SSB goes into effect on July 27, 2025. The Washington State Department of Labor & Industries may issue new guidance to address the new changes. Further, the Washington Supreme Court has heard oral argument in the Branson case, and is expected to issue an opinion in the coming months. We will continue to monitor these developments and provide updates as necessary.