Effective July 1, 2025, the Washington State Department of Labor & Industries (L&I) adopted new rules to implement changes to the EPOA that were made by the Legislature in 2024.
These changes expanded the EPOA from its historic protection of women to cover applicants and employees in all the protected classes listed in the Washington’s Law Against Discrimination. The new rules cover both actual and perceived membership in a protected class; for example, if an employer mistakenly thought an applicant or employee was a member of a protected class and discriminated against them.
Also, effective July 27, 2025, the Legislature amended the pay transparency requirements for job postings. The changes made by the Legislature in 2025 are not addressed in the new L&I rules, so employers will need to review both the new L&I rules and the Legislature’s 2025 amendments to the statute to get a complete picture of the legal requirements.
What Employers Need to Know:
- Employers may not discriminate between similarly employed workers based on membership in a protected class. However, there are exceptions for:
- Job-related factors like education, training, merit, and regional compensation differences.
- Other good faith factors that are tied to business necessity, not based on membership in a protected class, that account for the entire wage differential.
- Compliance with local minimum wage ordinances.
- Employers may not limit or deprive an employee of career advancement opportunities on the basis of their membership in a protected class. “Career advancement” includes formal and informal opportunities where an employee can gain knowledge, skills, or experience helpful in furthering their career, such as promotions, mentorships, and special projects. There are exceptions if the differential is based on a bona fide job-related factor or factors that:
- Are consistent with business necessity;
- Are not based on or derived from a gender-based differential; and
- One or more of these factors accounts for the entire differential.
- Examples of bona fide factors include education, training, or experience; a seniority or merit system; or a system that measures earnings by quantity or quality of production.
- Employers may not prohibit employees from discussing their wages. Employers cannot prohibit their employees from disclosing their wages as a condition of employment, nor require them to sign a waiver prohibiting such disclosure. Employers also cannot retaliate against employees who discuss, compare, inquire about, or disclose their wages or the wages of another employee. Additionally, retaliation is prohibited against employees who seek an explanation for their wages or advancement or who assist another employee in exercising their rights under the Rule. Employers may, however, prohibit employees who have access to the wage information of others as part of their job functions from sharing such information unless the sharing is in response to a complaint, charge, investigation, or a legal duty.
- Employers are prohibited from inquiring about the wage or salary history of applicants from the applicant or their current or former employer. Employers also cannot require that an applicant’s salary or wage history be above a certain threshold or any other specific value. Employers can confirm an applicant’s pay history if either the individual voluntarily disclosed it or an employment offer has been extended and accepted. However, employers are not allowed to reduce an applicant’s compensation offer after learning their pay history.
- Employers must disclose the fixed wage, wage scale or salary range for each job posting they make, regardless of format (print, web, etc.). Additionally, the benefits reasonably and genuinely expected for the position – such as paid sick leave, health care, retirement, etc. must be described. The pay transparency requirements apply to employers with 15 or more employees at the time of the job posting, including employees who do not have a physical presence in Washington. The Legislature’s 2025 changes to the pay transparency requirements are not included in the new L&I rules, so the two need to be read together to get a complete picture of the legal requirements.
- Remedies. Among other things, the Legislature’s 2025 changes to the EPOA affect the amount of damages available and provide employers with an opportunity to cure inadequate job postings until July 27, 2027, and protection from liability for third-party postings. These changes are not part of the new L&I rules, so the two need to be read together to get a complete picture of the legal requirements.
- Employer retaliation is prohibited. The protection against retaliation applies to employees who have filed complaints, instituted proceedings, or who have testified or instituted or caused to be instituted any proceeding under the EPOA. For example, employers cannot use the exercise of rights under the EPOA as a negative factor in any employment action such as evaluation, promotion, or termination, or otherwise discipline an employee for exercising any rights under the EPOA.
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This summary is a broad overview of a complex topic, and it does not constitute legal advice. If you have any questions, feel free to contact Karen Sutherland ([email protected]), or any other attorney of the Ogden Murphy Wallace, P.L.L.C. Labor and Employment Group.
