Duane Morris Takeaways: On September 4, 2025, the Washington Supreme Court issued its highly anticipated decision in Branson, et al. v. Washington Fine Wine & Spirits, LLC, et al., Case No. 103394-0 (Wash. Sept. 4, 2025), holding that job applicants are not required to prove they are a "bona fide" or a "good faith" applicant to obtain remedies under the EPOA in class action litigation. The Washington Supreme Court acknowledged, but declined to address, other open issues under the EPOA, which means that state and federal courts in Washington will now be called upon to rule on other unresolved issues under the statute, including whether the EPOA even grants a private right of action to applicants in the first instance.
Case Background
Washington state's Equal Pay and Opportunities Act ("EPOA") was amended in 2022 to require employers to include wage or salary range information in job postings. Soon thereafter, a torrent of class action lawsuits followed, some filed by applicants who had legitimately sought employment, but far more filed by serial plaintiffs seeking recovery of staggering amounts of statutory damages and attorneys' fees. Before it was further amended in 2025, the EPOA provided for $5,000 in statutory damages per job applicant.
Plaintiffs Lisa Branson and Cherie Burke submitted applications for retail positions with defendant and the job postings to which they applied did not contain the required salary or wage range information. Branson interviewed for the position for which she applied and discussed pay during that interview, but did not accept the position she was offered.
Subsequently, Branson and Burke filed a class action lawsuit invoking their right to statutory damages under the EPOA. Although Branson seemingly was a bona fide job applicant, the defendant filed a motion to bifurcate discovery, arguing that plaintiffs were not the type of "job applicants" the EPOA was intended to protect and that the statute only applies to "bona fide" applicants. The U.S. District Court for the Western District of Washington certified the following question: "What must a Plaintiff prove to be deemed a 'job applicant'" under the EPOA? The Washington Supreme Court accepted certification to resolve that question.
The Decision
Relying first on the dictionary definition of "applicant," as "one who applies for something," the Supreme Court noted that the definition does not rely on the subjective intent of the individual to determine whether a person is an applicant. Thus, the plain meaning of the term means only "one who applies" irrespective of their intent in doing so. The Supreme Court noted that elsewhere in the EPOA the legislature used the phrase "bone fide," but it did not do so in reference to job applicants, further confirming no such limitation.
The Supreme Court also found telling the fact that the legislature originally considered conferring remedies broadly to "individuals," but then amended the statute to confer remedies on applicants and employees, suggesting the legislature specifically considered who could obtain remedies and yet did not include any further words of limitation such as "bona fide." Additionally, the Supreme Court highlighted that although the agency charged with adopting rules implementing the statute, Labor & Industries, originally promulgated draft rules which defined a job applicant as a "good faith" applicant, that definition was withdrawn and never implemented.
The Supreme 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 act to make this change.
Three of the nine justices issued a sharply worded dissent disagreeing with the majority's ruling and expressing their view that the EPOA was not designed to "give bounty seekers an incentive to trawl the internet for noncompliant job postings to obtain a statutory damages award unrelated to any personal harm." Dissenting Opinion, at 2.
Although the outcome is not what employers were hoping for, there are silver linings in the Branson decision and, in particular, in the Supreme Court's numerous footnotes. Principally, although it declined to rule on the issue because the argument was not made by the defendant, the Supreme Court chose to highlight in footnote 3 that the EPOA may only confer a private right of action on employers, and limit applicants to filing claims with Labor and Industries. The Supreme Court also chose to emphasize another argument made in amicus briefing in footnote 6 of the decision wherein it highlighted that the remedies available under the EPOA may be too severe and unconstitutional. It declined to rule on that issue too as it also was not an argument made by the defendant. Thus, these issues and many others remain unresolved and may soon be addressed by Washington state and federal courts as the legions of EPOA cases, all stayed pending the Branson ruling, are now litigated.
Implications of the Decision:
The Branson decision is an unfortunate ruling for Washington state employers. An unharmed plaintiff who never had any legitimate interest in a posted job position and whose only goal is to collect money through legal proceedings now has the green light to seek remedies under the EPOA. That said, the Branson decision highlights other defense arguments that can and should be made in all pending EPOA cases. The decision suggests that a private right of action is limited to employees, and that applicants can only seek remedies under the EPOA through administrative proceedings before Labor & Industries.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
