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Washington Amends the Equal Pay Opportunity Act

05/03/18

Author: ADP Admin/Tuesday, May 1, 2018/Categories: Compliance Corner , Washington

Washington has enacted the Equal Pay Opportunity Act, amending the state’s equal pay law for the first time since 1943.

Historically, employers have been prohibited from paying female employees wages less than similarly employed male employees.  The Equal Pay Opportunity Act amends Washington’s wage discrimination law to make it an unlawful discriminatory practice for an employer of one or more employees to discriminate in providing compensation based on gender between similarly employed employees.

Employees are “similarly employed” if the individuals work for the same employer, the performance of the job requires similar skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed. “Compensation” means discretionary and nondiscretionary wages and benefits provided by an employer to an employee as a result of the employment relationship. A differential in compensation based in good faith on a local government ordinance providing for a minimum wage different from state law does not constitute discrimination under the statute.

However, a pay differential is permissible if based in good faith on a bona fide job-related factor or factors that are consistent with business necessity, are not derived from a gender-based differential, and that account for the entire differential. More than one factor may account for the differential. Examples of factors include, but are not limited to:
  • education, training, or experience;
  • a seniority system;
  • a merit system; 
  • a system that measures earnings by quantity or quality of production; or,
  • a bona fide regional difference in compensation level.
Importantly, an individual's previous wage or salary history is not a defense under the statute. The employer carries the burden of proof on these defenses.

Wage Transparency Requirements and Anti-Retaliation Provisions
The Equal Pay Opportunity Act amendments also prohibit employers from imposing pay secrecy policies. Specifically, an employer may not require nondisclosure by an employee of his or her wages or require an employee to sign a waiver that prevents the employee from disclosing the amount of the employee's wages. An employer may, however, prohibit an employee who has access to other employees' compensation information as part of his or her essential job functions from disclosing the wages of other employees or applicants.

The amendments also prohibit employers from retaliating against employees who file complaints under the Equal Pay Opportunity Act, discuss wages, or seek advancement opportunities

Enforcement
The law amends the enforcement provisions of the wage discrimination and pay parity law to allow an aggrieved individual to file an administrative complaint with the Department of Labor and Industries in addition to permitting an employee to file a civil action within three years of the alleged violation.

Coverage: Employers with employees in Washington.

Effective: June 7, 2018

Action Required: Employers should review and revise, if necessary, policies, hiring practices, and related forms to comply with new restrictions. Employers should also train their recruiters, and employees who interview or screen applicants, regarding the impact of the new law. Finally, employers should consider reviewing all compensation related policies and procedures with counsel.

As always, please be sure to contact your HR Business Partner if you have any questions.

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Tags: 05/03/18

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