Equal Pay & Opportunities Act Common Questions
All employers doing business in Washington are required to comply with the Equal Pay and Opportunities Act, including private and public employers.
All employees working in Washington are protected by the law.
No. The law does not provide an exemption for collective bargaining agreements.
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
- Are consistent with business need.
- Are not based on gender.
- Account for the entire compensation difference.
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.
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.
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.
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.
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.
Yes, so long as the difference is based entirely on job-related factors that:
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
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.
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).
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.
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.
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
- Are consistent with business need.
- Are not based on gender.
- Account for the entire differential.
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.
Differences in career advancement opportunities between genders may be acceptable so long as the difference is based entirely on job-related factors that:
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
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.
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.
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
No. It is unlawful for an employer to seek the salary history of a job applicant.
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.
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.
Yes. Employers with 15 or more employees are required to provide the wage scale or salary range of a new position to employees offered an internal transfer or promotion, once the position is offered.
Job Posting Requirements
- Seniority or longevity
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, a general description of benefits, and a general description of other compensation on job postings that recruit Washington-based employees.
Yes. The “15 or more employees” threshold includes employees who do not have a physical presence in Washington, as long as the employer has at least 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 employees.
Whether the employer needs to comply with the job posting requirements depends on the number of employees they have at the time the job is posted. An employer may choose to assume the law applies, rather than changing their practices for each fluctuation, but the employer is not required to do so.
Employers must include the required information if the posting is for a position that could be filled by a Washington-based employee, including remote work that could be performed by a 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. The out-of-state exception applies to jobs tied to worksites physically located entirely outside of Washington. This out-of-state exception is applied on a case-by-case basis.
The law requires employers to provide a wage scale or salary range. L&I suggests that employers be as transparent as possible on their job postings. Employers should create the full range of compensation for a job before they post the position and consider possible pay changes based on factors such as:
Yes. Movement between positions, including these examples, would likely be considered internal transfers and thus be subject to the disclosure of the wage scale or salary range upon request of the employee.
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.
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.
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.
The Act covers only posts an employer itself makes, or has another party make. An employer is not liable if they have a compliant job posting, but then a third party, on its own initiative, without being instructed or hired by the employer to do so, re-posts that employer’s job without the required information.
The law covers only posts an employer itself makes, or has another party make. An employer is not liable if they have a compliant job posting, but then a third party, on its own initiative, without being instructed or hired by the employer to do so, re-posts that employer’s job without the required information.
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.
A person is only considered an applicant for the specific position they applied for, not for every available job of the employer.
L&I will investigate complaints filed only by applicants who have applied to jobs in good faith with the intent of gaining employment.
L&I will generally only assess damages when an applicant can establish that they have been harmed by the posting.
Damages may be assessed in situations involving employees on a case-by-case basis.
L&I may still apply civil penalties against the employer as appropriate.
L&I's Investigation and Enforcement
- Is in electronic or printed hard copy
- Includes qualifications for desired applicants
- Is for a specific available position
Employers carry the burden of proof to show a violation does not exist.
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.
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.
A tip should be submitted if a person sees a job posting they believe does not comply with the Equal Pay and Opportunities Act pay transparency requirements, but they do not intend to apply for the available position or do not wish to file a formal complaint. In these instances, L&I can provide education on the law to the applicable employer.
A formal complaint should be submitted if a person has applied to an available position in good faith with the intent of gaining employment and believes the job posting does not comply with the job posting requirements.
For the job posting requirements to apply, all the elements of a posting must be present.
A “posting” is defined as any solicitation, including recruitment done directly by an employer or indirectly through a third party, intended to recruit job applicants that:
It should be noted, L&I cannot investigate complaints submitted anonymously. Any complaint form submitted without all the necessary information will be treated as a tip and will not be investigated as a formal complaint.