Washington State Wraps Up Legislative Year with Stronger Equal Pay Protections

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Washington State wrapped up the 2018 legislative term with several new laws affecting individuals’ rights in the workplace.  Highlights include equal pay protections, protecting workers who are victims of domestic violence, strong sexual harassment laws, ban-the-box legislation, and a law authorizing increases in the penalties for violations of state occupational safety and health laws.

We’ll be covering each of these laws in a series of blog posts so that employers are aware of upcoming compliance obligations.  In this post, we’ll take a closer look at one of these laws, the Equal Pay Opportunity Act (House Bill 1506).  The act imposes new responsibilities on employers, including posting an upcoming version of the state’s employment poster, “Your Rights as a Worker.”

Equity in Compensation

This year, the State of Washington enacted the Equal Pay Opportunity Act amending the state’s equal pay law for the first time since it was passed in 1943.  As amended, the law is gender-neutral, affording employees additional rights and protections to ensure greater wage equality among all Washington workers, regardless of gender.

Historically, employers have been prohibited from paying female employees wages less than similarly employed male employees.  The revised law prohibits all gender-based differences in compensation between similarly employed employees.  “Compensation” is defined as discretionary and nondiscretionary wages and benefits.  The term “similarly employed” is defined to mean work that is for same employer, requires similar skill, effort and responsibility, and is performed under similar working conditions.

Under current law, pay differentials for reasons other than gender are permissible, but under the amended law employers have more guidance about defensible pay differentials.  An employer may account for a pay differential based in good faith on bona fide job-related factors that: (1) are consistent with business necessity, (2) are not based on or derived from a gender-based differential, and (3) account for the entire differential. Such factors may include:

  • education, training or experience;
  • a seniority system;
  • a merit system;
  • a system measuring quality or quantity of production; or
  • regional pay differences.

An employer may not use salary history to defend a pay differential.

Equality of Opportunity for Advancement

The Act’s prohibitions are not limited to gender-based differentials in compensation.  A novel component of the law prohibits an employer from limiting or depriving an employee of career advancement opportunities based on the employee’s gender.  An employer’s defenses to differentials in career advancement opportunities are the same as the defenses to differentials in compensation.  The implementing rules, when adopted, may provide more information about prohibited conduct.

Pay Transparency

The amended law also protects pay transparency.  An employer may not prohibit an employee from disclosing his or her wages as a condition of employment or require the employee to sign a waiver to that effect.  In addition, an employer may not retaliate against an employee for:

  1. Inquiring about, disclosing, comparing, or otherwise discussing the employee’s wages or the wages of any other employee;
  2. Asking the employer to provide a reason for the employee’s wages or lack of opportunity for advancement; or
  3. Aiding or encouraging an employee to exercise his or her rights under this section.

Remedies for Violations

An employer is prohibited from retaliating against an employee for exercising their rights under the amendments.  An individual whose rights have been violated may file a civil action for damages against the employer or may file a complaint with the Department of Labor and Industries (L&I).  L&I can order the employer to pay actual or statutory damages up to $5,000, civil penalties of up to $500 for a first violation and up to $1,000 for each repeat violation, the costs of investigation and enforcement and any wages owed for up to four years.

Posting Notice

The law contains a provision that requires L&I to update employment posters with notice of the law.  We anticipate theYour Rights as a Worker” posting to reference some of the rights of the amended equal pay law when it goes into on June 7, 2018.  Check our upcoming Washington blog posts for our coverage of other new workplace laws.

Update 6/2018:  The Department of Labor & Industries Employment Standards Program has advised us that “the posters are not required to be updated immediately when laws change.  The poster update is required at the next scheduled printing and will most likely be next year.”

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