Duane Morris Takeaway:This week's episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman, special counsel Eden Anderson, and associate Caitlin Capriotti with their discussion of a highly anticipated ruling from the Washington Supreme Court holding that job applicants are not required to prove they are a "bona fide" or a "good faith" applicant to obtain remedies under the Equal Pay and Opportunities Act ("EPOA") in class action litigation.
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Episode Transcript
Jerry Maatman: Thank you all for joining us for today's Class Action Weekly Wire, our continuing podcast series. Joining me today are Eden Anderson and Caitlin Capriotti of our California offices. Welcome.
Eden Anderson: Great to be here, Jerry. Thanks for having me.
Caitlin Capriotti: Glad to be here, thanks for having me.
Jerry: Today, we wanted to dive into the recent decision of the Washington Supreme Court called Branson v. Washington Fine Wine and Spirits. Eden, could you give our listeners an overview of what was at issue in that ruling?
Eden: Absolutely. In 2022, the Washington legislature amended the state's Equal Pay and Opportunities Act, the EPOA, to require employers to include wage or salary ranges in job postings. And if the employer did not comply, the statute – at least as it was then written, it's since been amended – provided for $5,000 in statutory damages per applicant. That can add up to millions in exposure, depending on the volume of applicants to a job. So, of course, the plaintiffs' bar seized on the new law and started filing class actions. Some of the lawsuits were filed by genuine job applicants. But many of the lawsuits were filed by what we call serial plaintiffs, people who had no interest in the job, and who were applying just to trigger a lawsuit and collect statutory damages and attorneys' fees for their lawyers. The question presented in the Branson case was whether a plaintiff has to show that they applied to a position in good faith and are a "bona fide" job applicant.
Jerry: Thank you. Caitlin, who were the specific plaintiffs at issue in the decision before the Washington Supreme Court?
Caitlin: The lead plaintiffs were Lisa Branson and Cherie Burke. They both applied for retail positions at Washington Fine Wine & Spirits, but the job postings did not include the required pay range info. Branson even interviewed and discussed pay, however, she ultimately decided not to take the job. After the plaintiffs filed a class action, the federal court where the lawsuit was pending certified the question of what must a plaintiff prove to be deemed a job applicant under the EPOA to the Washington Supreme Court, and the Supreme Court accepted certification to resolve that question. It is a bit curious and possibly unfortunate for employers that this issue came up in this case, given that Branson herself was seemingly interested in the job she applied for.
Jerry: So, what did the Washington Supreme Court ultimately decide in its ruling?
Eden: The court held that job applicants do not have to prove they were "bona fide" or acting in good faith to recover the remedies that the EPOA provides. The court relied on the dictionary definition of applicant as essentially someone who applies to reach that conclusion.
Caitlin: They also noted that while the legislature used the phrase "bona fide" elsewhere in the EPOA, it didn't use that term in reference to job applicants. That absence was important to the court's reasoning. The court repeatedly noted in the decision that if the EPOA is to be limited to bona fide or good faith job applicants, the Washington Legislature will need to make that act and make this change.
Jerry: So, what would the takeaway be – you simply apply, and therefore you qualify as a plaintiff who is standing in a case like this?
Eden: Well, I guess yes and no, Jerry. Yes, in that you qualify for the remedies that are available under the statute. Even if an applicant never had any real interest in the job, they still can seek the remedies that are available under Branson. But I want to be clear in saying that the Branson opinion is limited to remedies available to applicants. Whether the EPOA confers a private right of action, the right to file a lawsuit on a job applicant, remains an open issue.
Jerry: Caitlin, I also understand there was a vigorous dissent in the ruling. What did the dissent have to say about these issues?
Caitlin: Yes, a dissent was issued by three of the nine justices. They argued that the EPOA was not meant to allow what they called "bounty seekers" to comb job boards just to file lawsuits. Their concern was that this decision opens the door to the abuse of the statute.
Jerry: Well, thanks for that. Is it fair to say, then, that there are remaining open issues that can be legitimately litigated by employers when it comes to liability under this statute?
Eden: That's correct, Jerry. As I mentioned, the decision only holds that anyone applies for a job, irrespective of their motive in doing so, can seek to recover remedies available under the statute. There's a footnote in the opinion that highlights that those remedies may only be available in administrative proceedings before Washington's labor and industries. That's a key legal issue that will soon, surely be addressed by the courts in these cases. And other issues left open by the decision include whether statutory damages under the EPOA are too severe and unconstitutional; whether a plaintiff has standing to pursue damages on behalf of job applicants who applied to other positions that the plaintiff never sought to fill; and whether the recent amendments to the EPOA, which create a new sliding scale of statutory damages of $100 up to $5,000, applies retroactively. It's unfortunate that the Washington Supreme Court didn't proactively resolve at least some of those issues and is leaving it to litigants and to the courts to figure this all out.
Jerry: Let's pan out then and take a look from a 100,000-foot view. What are the big picture implications of the ruling for businesses that operate in Washington state?
Caitlin: So, the short version is that this decision was not what employers were hoping for. It means that serial plaintiffs have viable claims, although the form of those claims is an issue still to be addressed. And that creates real exposure, especially for companies with high-volume hiring.
Jerry: Well, thanks, Eden and Caitlin. This is a great analysis for our listeners with respect to compliance with Washington's EPOA. It's certainly more critical now than ever before to proactively manage these risks in terms of the amount of class action litigation ongoing in the Evergreen State. The bottom line is probably this is the first of many rulings that are going to emanate out of the state of Washington on the parameters of the statute, and this is probably chapter one of a long litigation book that will be written. So, we'll be watching the lower courts as the next wave of EPOA litigation erupts and provide these developments on our blog and in our annual Duane Morris Class Action Review. So, thanks so much for joining us on this week's podcast.
Eden: Thanks for having me on the podcast, Jerry, and thanks to the listeners for being here.
Caitlin: Yeah, thank you for everyone. Thank you for having me.
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