EQUAL PAY AND OPPORTUNITIES ACT ES.E.1

ES.E.1 EQUAL PAY AND OPPORTUNITIES ACT 11/14/2022

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ADMINISTRATIVE POLICY

STATE OF WASHINGTON

DEPARTMENT OF LABOR AND INDUSTRIES

EMPLOYMENT STANDARDS

TITLE: EQUAL PAY AND OPPORTUNITIES ACT NUMBER: ES.E.1

ISSUED: 11/30/2022

CHAPTER: RCW 49.58 SEE ALSO: ES.A.13

ADMINISTRATIVE POLICY DISCLAIMER

This policy is designed to provide general information in regard to the current opinions of the Department of Labor & Industries on

the subject matter covered. This policy is intended as a guide in the interpretation and application of the relevant statutes,

regulations, and policies, and may not be applicable to all situations. This policy does not replace applicable RCW or WAC

standards. If additional clarification is required, the Program Manager for Employment Standards should be consulted.

This document is effective as of the date of print and supersedes all previous interpretations and guidelines. Changes may occur

after the date of print due to subsequent legislation, administrative rule, or judicial proceedings. The user is encouraged to notify the

Program Manager to provide or receive updated information. This document will remain in effect until rescinded, modified, or

withdrawn by the Director or his or her designee.

This policy provides guidance on the Equal Pay and Opportunities Act (RCW 49.58). The Equal

Pay and Opportunities Act prohibits gender pay discrimination and promotes fairness for workers

by addressing business practices that contribute to income disparities among genders. Both

employees and applicants have rights under this law. Most employers must provide wage and

salary information to job applicants.

1. Employee and Job Applicant Rights Under the Equal Pay and Opportunities Act.

The Equal Pay and Opportunities Act defines an “employee” as being employed in the business

of the employee's employer whether by way of manual labor or otherwise. See RCW 49.58.010.

This also includes employees who are exempt under the Minimum Wage Act. See RCW 49.46.

The Equal Pay and Opportunities Act defines an “employer” as any person, firm, corporation,

partnership, business trust, legal representative, or other business entity which engages in any

business, industry, profession, or activity in this state and employs one or more employees, and

includes the state, any state institution, state agency, political subdivisions of the state, and any

municipal corporation or quasi-municipal corporation. See RCW 49.58.010.

The department has authority to investigate complaints filed by employees, former employees,

and job applicants against employers in order to enforce the Equal Pay and Opportunities Act.

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1.1 Equal Pay. Employers must provide equal compensation to “similarly-employed”

workers, except for some specific reasons unrelated to gender. Employees are

considered similarly employed if they have the same employer and the performance of

their job requires similar skills, efforts, responsibilities, and working conditions. Job titles

alone do not determine if employees are similarly employed. See RCW 49.58.020.

Permissible factors for differences in pay may include:

 Differences in education, training, or experience

 Seniority

 Merit/work performance

 Compensation based on quantity or quality of production

 Regional differences in compensation

 Differences in local minimum wages

1.2 Equal Career Advancement Opportunities. Employers must not limit or provide

career advancement opportunities to their employees on the basis of gender. See RCW

49.58.030.

Acceptable factors for differences in career advancement opportunities may include:

 Differences in education, training, or experience

 Seniority

 Merit/work performance

 Compensation based on quantity or quality of production

1.3 Open Wage Discussions. Employers cannot prohibit employees from inquiring

about, disclosing, comparing, or discussing their wages, including pay and benefits, with

others, or require employees to sign agreements that prevent them from discussing their

wages. See RCW 49.58.040.

Some examples of protected wage discussions may include:

 An employee asking their employer for a pay raise

 An employee asking their employer for the reason why they are paid at a specific

rate

 An employee comparing wages with other employees

 An employee asking their employer to confirm what their pay rate is

 An employee asking for wages owed

1.4 Protections from Discrimination and Retaliation. Employers cannot take any

adverse action against an employee for discussing wages, filing a complaint, or exercising

other protected rights granted under the Equal Pay and Opportunities Act. See RCW

49.58.050 and RCW 49.58.040(2).

Protected rights under the law include:

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 Inquiring about or making a complaint with their employer (formally or informally)

about an alleged violation of the law

 Open wage discussions

 Communicating with any person, including coworkers, about a violation of the law

 Filing an Equal Pay and Opportunities Act complaint with L&I

 Testifying or otherwise participating in an administrative, judicial, or other

investigation or proceeding regarding an alleged violation of the law

 Informing another person about that person’s rights under the law

 Inquiring about, disclosing, comparing, or otherwise discussing the employee’s

own wages or the wages of any other employee, unless as prohibited under RCW

49.58.040(3)

Prohibited retaliatory or adverse actions may include, but are not limited to:

 Terminating, suspending, demoting, or denying a promotion

 Reducing an employee’s hours or compensation

 Threatening to take, or taking action, based upon the immigration status of an

employee or an employee’s family member

 Taking any other adverse action against an employee for exercising or attempting

to exercise their protected rights under the law

1.5 Wage and Salary History Protections For Applicants. Employers cannot seek the

wage or salary history of an applicant or require that an applicant’s prior wage or salary

history meet certain criteria. For example, employers cannot require that an employee

made a minimum previous salary to be considered for a new position. See RCW

49.58.100. Employers cannot ask about a job applicant’s salary history in a job

application, even if the question is optional.

Employees can choose to disclose their wage or salary history to prospective employers,

but only if the disclosure is voluntary. An employer may confirm an applicant’s wage or

salary history if the applicant voluntarily discloses their history or after the employer

negotiates and makes an offer of employment including compensation to the applicant.

2. Pay Transparency Requirements.

Beginning January 1, 2023, most employers must disclose in each posting for each job opening

the wage scale or salary range, and a general description of all benefits and other compensation

to be offered to the hired applicant. See RCW 49.58.110.

A "posting" means any solicitation intended to recruit job applicants for a specific available

position, including recruitment done directly by an employer or indirectly through a third party,

and includes any postings done electronically, or with a printed hard copy, that includes

qualifications for desired applicants.

Employers must provide an employee who is offered an internal transfer or promotion with the

wage scale or salary range of their new position, if they request that information.

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3. Which employers must disclose a wage scale or salary range and a general description

of benefits and other compensation on a job posting?

All employers, with 15 or more employees, engaging in any business, industry, profession, or

activity in Washington must disclose a wage scale or salary range and a general description of

benefits and other compensation on job postings that recruit Washington based employees. See

RCW 49.58.010(5) and RCW 49.58.110.

3.1 15 or more employees. The “15 or more employees” threshold includes employees

that do not have a physical presence in Washington, if the employer has one or more

Washington-based employees. See ES.A.13, “Minimum Wage Act- Washington Based

Employee" for a description of the factors the department applies to determine whether

an employer has Washington-based employee(s).

3.2 Engaging in Business in Washington. “Engaging in any business, industry,

profession, or activity in Washington,” for the purposes of RCW 49.58.110, includes

employers that do not have a physical presence in Washington, but engage in business

in Washington or recruit for jobs that could be filled by a Washington-based employee.

Employers must disclose a wage scale or salary range and a general description of

benefits and other compensation on postings for remote work that could be performed

by a Washington-based employee. For factors used to determine whether an employee

is Washington-based, see ES.A.13, “Minimum Wage Act- Washington Based

Employee.” An employer cannot avoid disclosing wage and salary information

requirements by indicating within a posting that the employer will not accept Washington

applicants.

Employers do not need to disclose wage and salary information for jobs to be performed

entirely outside of Washington even if the job posting reaches applicants who would fill

the position as a Washington-based employee. This out-of-state exception must be

applied narrowly, on a case-by-case basis. The out-of-state exception applies to jobs

tied to worksites physically located entirely outside of Washington, for example, waitstaff

at restaurant locations in other states.

Employers do not need to disclose wage and salary information in printed hard copy

postings made and distributed entirely outside of Washington.

4. Who is considered an applicant under the Equal Pay and Opportunities Act?

All applicants, including existing employees, who apply to a posting recruiting Washington-based

employees, with an employer as defined by RCW 49.58.010, including employers who may not

have a physical presence or employee in Washington State, are protected by the law. See

Section 1 of this policy for definition of “employer.”

A person is only considered an “applicant” for the specific posting(s) they applied for, not for

every available job of the employer.

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If a person is offered a position that is different than the position applied for, the employer should

disclose wage and salary information by providing a copy of the compliant posting for the position

offered.

5. What information must be disclosed on a job posting?

Beginning January 1, 2023, applicable employers must disclose in each posting for each job

opening the wage scale or salary range and a general description of all the benefits and other

compensation for a specific available position to be offered to the hired applicant. See RCW

49.58.110.

5.1 Wage Scale or Salary Range. A wage scale or salary range should provide the

applicant with 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. If the employer does not

already have an existing wage scale or salary range for a position, a scale or range

should be created prior to publishing the posting.

A scale or range’s minimum and maximum should be clear without open-ended phrases

such as “$60,000/per year and up” (with no top of the range), or “up to $29.00/hour”

(with no bottom of the scale).

If the wage scale or salary range changes after a posting has been published, an

employer should update the posting to reflect the updated wage scale or salary range.

If the employer offers a different position than what the applicant applied for, the

employer may offer the applicant the wage scale or salary range specific to the position

offered, rather than the position in the posting.

If an employer intends to implement a “starting range” or “starting rate” for an initial

timeframe of employment or probationary period, the starting range or rate may be listed

on the posting but the entire scale or range must also be listed on the posting. For

example, the employer intends to hire an applicant and specifies that new hires

generally start between $60,000 and $65,000 per year. The employer further specifies

that the hired applicant’s placement within the entire range is based on qualifications and

professional experience and lists the entire salary range for the position as between

$60,000 and $70,000 per year. In this case, both the “starting range” and the entire

salary range should be disclosed to the applicant.

EXAMPLE 5.1-1: If the employer publishes a job posting for a job opening that can be

filled with varying job titles, depending on experience, the employer should specify all

potential wage scales or salary ranges. The job posting should clearly define the lowest

to highest pay established for each potential job position:

 Accounting Analyst 1- $27.00 - $29.00 per hour

 Accounting Analyst 2- $65,000 - $80,000 per year

 Accounting Analyst 3- $80,000 - $110,000 per year

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EXAMPLE 5.1-2: If the employer posts a job that is compensated by commission rates,

the employer should include the rate or rate range (percentage or otherwise) that would

be offered to the hired applicant:

 Commission-based salesperson – 5-8% of net sale price per unit

EXAMPLE 5.1-3: If the employer posts a job that is compensated by piece-rate, the

employer should include the agreed piece-rate or wage scale plus agreed piece-rate:

 Piece-rate agricultural worker - $0.55-$0.75 per pound of strawberries picked.

Additional compensation disclosures may be required for agricultural workers, see Farm

Labor Contractor & Worker Disclosure Statement Instructions.

EXAMPLE 5.1-4: If the employer posts a job that is compensated by the greater of a

piece-rate or hourly rate, the employer should include the agreed piece-rate or wage

scale and the agreed hourly rate:

 Piece-rate agricultural worker – The greater of: $0.75 per pound of strawberries

picked or $19.00/hour.

Additional compensation disclosures may be required for agricultural workers, see Farm

Labor Contractor & Worker Disclosure Statement Instructions.

5.2 General Description of All Benefits. A “general description of all benefits” includes,

but is not limited to, health care benefits, retirement benefits, any benefits permitting paid

days off (including more generous paid sick leave accruals, parental leave, and paid time

off or vacation benefits), and any other benefits that must be reported for federal tax

purposes, such as fringe benefits.

A general description of all benefits should provide the applicant with the employer’s

most reasonable and genuinely expected benefits offered for the specific available

position. If the general description of benefits changes after a posting has been

published, an employer should update the posting to reflect the updated benefit

information.

Insurance: If an employer includes various types of insurance as part of the benefits

package, the employer should list out the types of insurance in the job posting, such as

medical insurance, vision insurance, dental insurance, life insurance, and disability

insurance.

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Retirement Plans: If an employer includes various types of retirement options as part of

the benefits package, the employer should list the retirement option in the job posting,

such as 401k, employer-funded retirement plans, deferred compensation, and other

defined benefit or defined contribution plans.

Paid Time Off or Vacation: If the employer includes paid time off or paid vacation time

as part of the benefits package, the employer should list the amount of days or hours the

hired applicant would expect to receive, such as 8 hours per month or 12 days per year.

Paid Holidays: If the employer includes paid holidays as part of the benefits package,

the employer should list the number of paid holidays the hired applicant would expect to

receive in the job posting, such as 10 paid holidays per year. The employer does not

have to list each paid holiday.

More Generous Paid Sick Leave: If the employer includes a paid sick leave policy that

is more generous than that provided by Washington State law or any local ordinance

that applies as a part of the benefits package, the employer should list the number of

hours per month or days per year the hired applicant would expect to receive in the job

posting that is greater than Washington State law or any local ordinance, such as 3

hours of paid sick leave for every 40 hours worked or 8 hours of paid sick leave per

month.

EXAMPLE 5.2-1 General Description of All Benefits: “Employees (and their families)

are covered by medical, dental, vision, and basic life insurance. Employees are able to

enroll in our company’s 401k plan, as well as a deferred compensation plan. Employees

will also receive eight hours of vacation leave every month and twelve paid holidays

throughout the calendar year.

5.3 General Description of Other Compensation. “Other Compensation” includes, but

is not limited to, bonuses, commissions, profit-sharing, stock options, or other forms of

compensation that would be offered to the hired applicant in addition to their established

salary range or wage scale.

EXAMPLE 5.3-1 General Description of Other Compensation: “Hired applicant will be

able to purchase company stock, receive annual bonuses, and can participate in profit-

sharing.”

6. Electronic Postings May Link Benefit and Other Compensation Information.

On electronic job postings, employers must include a general description of benefits and other

compensation but may choose to utilize a link or hyperlink to lead the applicant to a more detailed

description.

Similarly, if the benefits and other compensation information is available on the original or

subsequent web pages, then the information needs to only be listed once.

It is the employer’s responsibility to assure continuous compliance with functionality of links, up-

to-date information, and information that applies to the specific job posting, regardless of any use

of third party administrators.

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7. Job Posting Examples.

Job postings must include wage and salary information when the posting includes qualifications

for desired applicants of a specific position. Qualifications are, but are not limited to, specific

knowledge, skills, or abilities requested of the applicant for suitability of the position.

7.1 The following examples are not considered a job posting because they do not

include qualifications or reference a specific position for a desired applicant.

EXAMPLE 7.1-1: A window sign that reads “Help Wanted”.

This example does not include qualifications or reference a specific position for a desired

applicant.

EXAMPLE 7.1-2: A window sign that reads “Help Wanted. Part-time Dishwasher.

Experience Needed.”

This example does not include qualifications for a desired applicant.

EXAMPLE 7.1-3: A website banner that reads “Hiring Now-All Jobs. Food Handler’s

permit required.”

This example does not reference a specific position for a desired applicant.

EXAMPLE 7.1-4 : A social media post that reads “Manufacturing jobs available, apply

now online. Weekend shifts required.”

This example does not include qualifications or reference a specific position for a desired

applicant.

EXAMPLE 7.1-5: An electronic reader board outside of a business that reads, “Help

Wanted- Server. Offering minimum wage plus tips”

This example does not include qualifications for a desired applicant.

7.2 The following examples are considered a job posting because they include

qualifications and reference a specific position for a desired applicant.

EXAMPLE 7.2-1: An electronic reader board outside of a business that reads, “Help

Wanted- Server. Food Handler’s Certification Needed. Offering: $24.00-$26.00 per hour,

medical benefits, 70 vacation hours per year, and $500 sign-on bonus.”

EXAMPLE 7.2-2: A social media post that reads, “Seeking applicants for a Billing

Specialist position. Must have 2 years of medical bill processing experience. $30.00-

$40.00 per hour, medical, vision, and dental benefits, 401k retirement plan, and stock

options available. More information can be found via hyperlink here.”

If the employer advertising for a specific available position includes qualifications on a

social media post, the employer should treat this as an electronic job posting.

EXAMPLE 7.2-3: An online job board posting that reads, “We are looking for a qualified

applicant who has experience with use of spreadsheets and database software for a

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Data Analyst role. Salary range is $60,000 - $80,000 per year. Medical, vision, dental

benefits, tuition reimbursements, and stock options available for the hired applicant.

More information can be found via hyperlink here.”

If the employer advertising for a specific available position includes qualifications on an

online job board or web based application, the employer should treat this as an

electronic job posting.

8. Federal Protections.

The federal Equal Pay Act (EPA) also provides equal pay protections to employees. The EPA is

enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and is separate from

the Washington state Equal Pay and Opportunities Act.

The federal National Labor Relations Act (NLRA) also provides employees with the right to

communicate with other employees at their workplace about their wages. The NLRA is enforced

by the National Labor Relations Board and is separate from the Washington state Equal Pay

and Opportunities Act.