Background
On September 4, 2025, the Washington Supreme Court answered a certified question from the U.S. District Court for the Western District of Washington about who qualifies as a "job applicant" under the pay transparency provision of Washington's Equal Pay and Opportunities Act ("EPOA"), RCW 49.58.110. The opinion has important implications for Washington employers.
In Branson v. Washington Fine Wine & Spirits, LLC (Total Wine), two individuals applied for positions at Total Wine in Tukwila, WA. One applicant submitted an application through the job posting website Indeed.com. The other applicant submitted an application through Indeed.com as well as Total Wine's official website, interviewed for a position, and was offered the position, which she then declined. Shortly thereafter, the two applicants filed suit in federal court against Total Wine, alleging the job postings did not comply with the posting requirements of the EPOA, which states that all job postings must include the wage scale or salary range for the position and a general description of all of the benefits and other compensation to be offered to the applicant if hired. On that basis, the applicants filed a class action suit on behalf of all applicants and sought statutory damages under RCW 49.58.070 and RCW 49.58.110.
During the course of litigation, Total Wine argued that the plaintiffs in the case were not the type of "job applicants" the EPOA intended to protect since the statute was meant to protect "bona fide" applicants. The U.S. District Court for the Western District of Washington then certified the following question to the Washington Supreme Court: "What must a Plaintiff prove to be deemed a 'job applicant' within the meaning of [the EPOA]? For example, must they prove that they are a 'bona fide' applicant"?
In a 6-3 decision, the Washington Supreme Court held:
- A plaintiffmustapply to a specific job posting to be deemed a "job applicant."
- A "job applicant" isnot requiredto prove they are a "bona fide" or "good faith" applicant to be entitled to remedies.
Key Holdings and Reasoning
In its holding, the Washington Supreme Court emphasized the following points:
- Plain meaning controls: The Court interpreted "job applicant" by its ordinary dictionary meaning – "one who applies". Thus, the Court declined to read a subjective-intent or "bona fide" requirement into the statute that could otherwise narrow who qualifies as an "applicant".
- Context and statutory scheme: The EPOA's purpose is to address wage disparities and discrimination, and the Legislature has consistently expanded protections for applicants and employees. The Court emphasized that the Legislature specifically chose not to add qualifiers like "bona fide" even though it has used such language in other EPOA provisions.
- Legislative history: In 2022, the Legislature replaced "individual" with "job applicant or employee" to provide remedies for people who actually apply, but did not narrow eligibility further. Efforts in 2024 to define "job applicant" as someone who submitted a "bona fide" application did not become law.
- Agency materials: The Department of Labor & Industries ("L&I") had internal materials referencing "good faith" applications for complaint investigations, but the Court found those did not control statutory interpretation and likely reflected resource constraints rather than legislative intent.
Important Statutory Updates
Although the Court's hardline stance on the term "job applicant" expands the pool of individuals who may bring a lawsuit, the Legislature implemented important changes to the EPOA while the Branson case made its way through the court system.
Effective July 27, 2025 (before Branson was decided), the Washington Legislature modified the EPOA to narrow available remedies for posting violations. Specifically, statutory damages are now limited to between $100 and $5,000 per violation, plus reasonable attorneys' fees and costs.
In addition, employers are now afforded five business days after notice to correct non-compliant postings or demand correction by a third-party posting entity. If the posting is corrected timely, no penalties, damages, or other relief may be assessed for that violation.
What This Means for Employers
Any individual who applies to a specific job posting may qualify for remedies if the posting does not include required pay/benefits information, even if the individual did not submit an application in good faith with the intention of obtaining employment.
Under the EPOA, employers are responsible for postings done "directly" or "indirectly" through third parties. Because job postings on popular platforms (e.g., Indeed, LinkedIn, etc.) can generate large applicant pools, employers carry a significant risk of a large-scale class action for non-compliant postings.
For that reason, employers should ensure all their job postings (including those on third-party websites) are compliant with the EPOA. Employers should consider embedding salary ranges and benefits descriptions in all templates, auditing feeds from job boards, and contractually require vendors to show the required information on any job postings.
In addition, given that the allotted time to cure any deficiencies is short, employers should implement a "notice-to-cure" protocol. Employers should attempt to centralize intake of notices from applicants, L&I, or counsel; correct postings or send written demands to third parties immediately; and retain evidence of corrections and third-party demands.
Bottom Line
Branson underscores that pay transparency in postings is a strict, applicant-facing obligation in Washington. Employers should assume that any applicant to a non-compliant posting may pursue remedies – regardless of the applicant's subjective intent. Thus, employers should invest in template control, vendor management, monitoring, and rapid cure protocols to minimize risk.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
