As we head into the holiday season, don’t forget to spruce up your job postings.
Earlier this year, Washington Governor Inslee signed SB 5761, which amends Washington’s Equal Pay and Opportunities Act with respect to job posting requirements. Effective January 1, 2023, employers with 15 or more employees must disclose in each job posting the wage or salary range for the position, and a general description of all of the benefits and compensation to be offered to the hired applicant. “Posting” means any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by the employer or through a third party, and includes both electronic and hard copy postings.
In addition, upon request of an employee 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. Violations of the new law are enforceable under RCW 49.58.060 and 49.58.070.
L&I’s Employment Standards Program released a draft administrative policy in August 2022 that provides some additional guidance on the new law.
Employer Size: Significantly, 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.
No Physical Presence Needed: Additionally, the definition of “employer” includes any business entity that engages in any business, industry, profession, or activity in Washington and employs one or more employees. “Engaging in any business, industry, profession, or activity in Washington,” 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.
Remote Employees: Additionally, the draft guidance makes clear that employers must disclose wage and salary information in postings for remote work that could be performed by a Washington-based employee. Further, an employer cannot avoid disclosing wage and salary information requirements by indicating within a posting that the employer will not accept Washington applicants.
Disclosures: 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).
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 job. 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. Employers do not have to include the total monetary value of a position’s benefits in a job posting.
In electronic job postings, employers must include a general description of benefits and other compensation but may choose to use a hyperlink to lead the applicant to a more detailed description, for example, on the company’s website.
If you have any questions about these new job posting requirements, please contact Trish Walsh, Kim McGair, or Kelly Tilden. Farleigh Wada Witt’s employment law team is happy to help.
