Equal Pay & Opportunities Act Common Questions

    Which employers are subject to the Equal Pay and Opportunities Act?

    All employers doing business in Washington are required to comply with the Equal Pay and Opportunities Act, including private and public employers.

    Which employees are covered by the Equal Pay and Opportunities Act?

    All employees working in Washington are protected by the law.

    Which job applicants are protected by the Equal Pay and Opportunities Act?

    All applicants seeking employment with a Washington employer are protected by the law.

    Are employees covered by a collective bargaining agreement exempt from this law?

    No. The law does not provide an exemption for collective bargaining agreements.

    Are employees protected from retaliation if an employer takes an adverse action towards them for exercising their rights under the Equal Pay and Opportunities Act?

    Yes. Employees are protected from retaliation if they are exercising any of their protected rights under the law. Additionally, an employer may not retaliate, discharge, or discriminate against an employee because the employee filed a complaint or participated in any proceedings under the law on behalf of themselves or others.

Determining whether employees are "similarly employed"

    What does “similarly employed” mean and how will L&I decide whether employees are similarly employed?

    Gender cannot be a reason for pay differences between “similarly employed” employees. Under the law, employees are considered similarly employed if they have the same employer and the performance of their job requires similar skill, effort, responsibility, and working conditions. Job titles alone do not determine if employees are similarly employed.

    L&I determines if employees are similarly employed on a case-by-case basis. That requires an analysis and comparison of job requirements, job descriptions, job duties, management and supervisory responsibilities, and other job-related information.

    What does “skill” mean when comparing similarly employed employees?

    For purposes of comparing jobs, skill includes factors such as experience, training, education, and ability required to perform the jobs. It must be measured in terms of the performance requirements of a job, not in terms of the skills an employee happens to have. Skills not necessary to perform a particular job are not relevant to determining whether jobs are substantially similar.

    What does “effort” mean when comparing similarly employed employees?

    Effort is the amount of physical or mental exertion needed to perform a job. Factors of the job which cause mental fatigue and stress, as well as those which alleviate fatigue, should be taken into account. Effort encompasses the requirements of job as a whole.

    What does “responsibility” mean when comparing similarly employed employees?

    Responsibility encompasses the degree of discretion or accountability involved in performing the essential functions of the job, as well as the duties regularly required to be performed for the job. It includes factors such as the amount of supervision the employee receives, or whether the employee supervises others. It also includes the degree to which the employee is involved in decision-making, such as determining policy, procedures, purchases, investments or other such activities.

    What does “working conditions” mean when comparing similarly employed employees?

    Working conditions are the environmental and other similar circumstances customarily taken into consideration in setting salary or wages. This includes factors such as the physical surroundings and hazards encountered by employees performing the job. A difference in the time of day a shift is worked is not likely to be considered different working conditions.

    Can employees who are similarly employed be compensated differently than each other?

    Yes, so long as the difference is based entirely on job-related factors that:

    • Are consistent with business need.
    • Are not based on gender.
    • Account for the entire compensation difference.

    Job-related factors include, but are not limited to education, training, experience, a seniority system, a merit system (work performance), a system that measures earnings by quantity or quality of production, regional differences in compensation levels, and compensation based in good faith on a local minimum wage ordinances different from state law.

Compensation and bonuses

    What is included in “compensation” for purposes of the Equal Pay and Opportunities Act?

    Compensation means the wages and benefits provided by an employer to an employee. Wages include, but are not limited to salaries, hourly rates, commissions, and non-discretionary bonuses. Benefits include compensation given to employees not based on performance such as gifts, medical insurance plans, retirement plans, paid time off, and discretionary bonuses.

    Can pay negotiation at time of hire be a justifiable defense for gender pay disparities?

    No. Pay negotiation at the time of hire is not an acceptable defense for gender pay differences. Employers can negotiate pay during the hiring process, but if the pay offered to a new employee causes a gender pay difference between similarly employed employees, any difference in compensation must be based on justifiable job-related factors (not the negotiation itself).

    If an applicant discloses a competing job offer’s salary during the hiring process, can the employer offer a higher salary to meet the competing offer?

    Yes. An employer may match or exceed a competing job offer during a hiring process so long as any difference in compensation between similarly employed employees is not determined on the basis of gender, and the pay difference can be justified by a job-related factor.

    Can employers still give bonuses to individual employees (such as sign-on, retention, attendance and performance bonuses)?

    Yes, so long as they are available to all employees performing similar work on an equal and non-discriminatory basis. Best practices include having a policy or defined systems in place to outline the availability and requirements to earn such benefits.

    May an employer award extra days off to an employee in recognition of productivity, going above and beyond, participation in employer events, etc.?

    Yes, so long as the extra days off are awarded to all employees performing similar work on an equal and non-discriminatory basis. Best practices include having a policy or defined systems in place to outline the availability and requirements to earn such benefits.

Career advancement opportunities

    Can employers send employees to gender-specific training?

    Offering gender-based training may be acceptable under the law if similarly employed employees are offered the same course regardless of whether they are the intended gender audience of the class. Offering gender-based training to similarly employed employees of one particular gender (or some genders but not all genders) may be considered a violation of the law because it may limit or deprive the excluded employees from career advancement opportunities that would otherwise be available.

    Can employees of different genders be given different career advancement opportunities?

    Differences in career advancement opportunities between genders may be acceptable so long as the difference is based entirely on job-related factors that:

    • Are consistent with business need.
    • Are not based on gender.
    • Account for the entire differential.

    Job-related factors include but are not limited to education, training, or experience, seniority, merit system (work performance), and measuring earnings by quantity or quality of production.

Wage discussion and wage information

    Can employers prohibit certain employees from disclosing wage information to others?

    Yes. Employers can prohibit such disclosures if an employee has access to compensation information of other employees and applicants as part of that employee’s essential job functions, such as a human resources manager. However, these employees are protected from retaliation and cannot be prohibited from disclosing their own wages.

    Can employers have non-disclosure agreements or policies for handling personal proprietary information and personnel information?

    Yes, non-disclosure agreements (NDA) and policies are permissible so long as they do not prohibit employees from discussing, disclosing, or comparing wages. NDAs or policies that prohibit wage discussions need to be revised to comply with the law.

    If an employee is offered a severance agreement as part of their termination of employment, can the company ask the employee to keep the wage confidential?

    A severance payment constitutes compensation. Requiring confidentiality of a severance pay agreement could be a violation of the Equal Pay and Opportunities Act if the employer requires the employee to sign a waiver or other document that prevents the employee from disclosing the amount of the employee’s compensation.

Wage and salary history of applicants

    Can an employer request or seek salary history information of job applicants?

    No. It is unlawful for an employer to seek the salary history of a job applicant.

    Can an employer require that an applicant’s prior wage or salary history meet certain criteria?

    No. An employer cannot require that an applicant’s prior wage or salary history meet certain criteria. For example, an employer cannot require that an applicant’s previous salary met a minimum specified amount in order to be eligible to apply for a new position.

    Will an employer be in violation of seeking a job applicant’s salary history if the applicant voluntarily discloses that information?

    No. An employer may confirm an applicant’s wage or salary history only if the applicant has voluntarily disclosed the applicant’s wage or salary history. However, employers cannot ask about job applicants’ salary history on a job application, even if the question is optional.

    Are employers required to provide the minimum wage or salary range of a position to employees who have been offered an internal transfer to a new position or promotion?

    Yes. Upon request by the employee, some employers are required to provide the minimum wage or salary range of a new position to employees offered an internal transfer or promotion, once the position is offered. If a wage scale or salary range does not exist, the employer must provide the minimum wage or salary expectation set by the employer prior to posting the position, making a position transfer, or offering the promotion. This requirement only applies to employers with 15 or more employees.

    Are employers required to provide the minimum wage or salary range of a position to applicants who have been offered the job?

    Yes. Some employers are required to provide the minimum wage or salary range of a position to applicants once the position is offered and if the applicant requests this information. This requirement only applies to employers with 15 or more employees.

L&I's investigation and enforcement

    Who carries the burden of proof during an investigation of alleged violations of the Equal Pay and Opportunities Act?

    Employers carry the burden of proof to show a violation does not exist.

    Can L&I initiate an investigation for one or more employees?

    Yes. The department may initiate an investigation involving multiple employees when, through the course of an investigation, it is discovered that other employees beyond the original complainant were subject to violations of the law.

    Does L&I need to prove that an employer intended to discriminate by providing unequal pay based on gender in order to find a violation of EPOA?

    No. If a gender pay difference between similarly employed employees exists, and there are no justifiable job-related factors to account for the difference, the employer will be considered to be in violation of the Equal Pay and Opportunities Act.

Related Resources