The Fate of Hundreds Of EPOA Class Actions Await The Washington Supreme Court’s Decision in Branson v. Washington

The Washington Supreme Court recently entertained oral arguments in Branson v. Washington Fine Wines on the following certified question from the W.D. Washington regarding the Equal Pay and Opportunities Act (“EPOA”):

What must a Plaintiff prove to be deemed a “job applicant” within the meaning of RCW 49.58.110(4)? For example, must they prove that they are a “bona fide” applicant?

Plaintiffs-Appellants Lisa Branson and Cherie Burke argued that the term “job applicant,” though currently undefined by the EPOA, is unambiguous and should be interpreted--based on its plain and ordinary meaning--as any person who applies to a job posting.

In fact, in response to the first question posed, Plaintiffs asserted that a 10-year-old who applied to a job posting was considered a job applicant under the EPOA and entitled to recover penalties.  Doubling down, Plaintiffs insisted that an untrained 18-year-old who applied for a neurosurgeon job could also be deemed an applicant under the plain language of the EPOA.

By contrast, Defendant-Appellee Washington Fine Wines & Spirits argued that the plain meaning of “job applicant” required the applicant to have a good-faith or bona fide intention of seeking employment.  Without that intent, individuals could misuse the statute by submitting applications just to obtain the statutory penalty.  Washington Fine Wines also urged the Court to interpret the law to reflect the Legislature’s intent: not to punish employers for minor mistakes but to protect legitimate applicants, those seeking employment in good faith.

Some justices inquired whether a bona fide standard increased the burden for plaintiffs: to prove they were qualified to hold the job or that he/she intended to actually take the position.  They queried whether an applicant could apply for a position for other legitimate reasons, such as to negotiate with their current employer. 

Washington Fine Wines noted that the intent of the legislature was to create a level playing field and the problem with an unclear definition was that several plaintiffs in pending class actions had no intention of playing the game.

Since the pay transparency provisions of the EPOA took effect on January 1, 2023, Washington courts have been inundated with class action lawsuits by a few serial plaintiffs seeking penalties from literally hundreds of Washington employers.  Their interpretation of the EPOA would subject employers to millions of dollars in damages for minor errors in postings – even if the wage scale for the job position was otherwise available on another website or source.

This spate of lawsuits has understandably garnered the attention of many interest groups, which filed multiple Amicus Briefs in support of both sides. Those supporting Washington Fine Wines raised arguments noting that a bona fide requirement would align with Washington’s standing requirements, and would support the legislative history that the statute was intended to promote equal pay for applicants and employees.  

With the Court’s decision on the certified question still pending, Washington employers are unlikely to have clear guidance on potential defenses for some time. However, recent developments in the Washington legislature appear focused on trying to remedy the current morass. Senate Bill 5408, currently progressing through the state Senate’s 2025 regular session, seeks to amend RCW 49.58.110 by granting employers a 10-day period to cure non-compliant job postings after receiving proper notice. If passed, this bill would provide pre-litigation relief, preventing lawsuits if corrections are made within the prescribed timeframe. The bill is currently on second reading in the Rules Committee, and Seyfarth will continue to monitor its progress.

Regardless of which way the Washington Supreme Court’s rules, the Court’s decision will have significant implications on the hundreds of similar cases currently pending in Washington state and federal courts.

If your business solicits job applicants in the State of Washington, either directly or through a recruiter, Seyfarth’s Seattle office can assist you in developing a compliance plan and crafting appropriate disclosure language.