On Sept. 4, the Washington State Supreme Court issued a significant opinion in Branson v. Washington Fine Wine and Spirits LLC, holding that the phrase "job applicant" in the state's Equal Pay and Opportunities Act, or EPOA, means simply "a person who applies to a job posting." The court declined to impose any additional requirements, such as a good faith or bona fide interest in the position.

The ruling clarifies one contested statutory term but leaves employers facing heightened litigation risk and several unanswered legal questions. Combined with amendments to the EPOA that took effect on July 27, the Branson decision underscores the need for employers in Washington to take a proactive, structured approach to compliance.

This article explains the decision, explores the unresolved issues that will shape future litigation and examines Washington's rules in the broader national context of other states' pay transparency laws. It concludes with several practical steps for human resources staff to help employers audit and improve their job posting practices.

What the Branson Case Decided

As amended in 2018, the EPOA requires employers to include wage or salary ranges and certain benefit information in job postings. In Branson, the plaintiffs applied to open positions at a Washington Fine Wine and Spirits, or WFWS, location. Neither of the job postings contained information related to compensation for the open positions.

After neither obtained employment, the plaintiffs sued for statutory damages because the job postings failed to contain the requisite information under the EPOA. The plaintiffs argued that anyone who applies to a deficient posting should be entitled to relief under the statute, regardless of intent or qualification. WFWS argued for a narrower reading that would limit coverage to genuine or qualified applicants.

The Washington Supreme Court sided with the plaintiffs. Emphasizing the plain language of the statute, the court held that "job applicant" includes anyone who submits an application in response to a posting. The court concluded that because the Legislature did not insert limiting terms like "bona fide" or "in good faith," the judiciary should not add them.

The majority acknowledged that this interpretation could allow opportunistic applications — i.e., individuals applying solely to set up a lawsuit — but stressed that any corrective measures would need to come from the Legislature, not the courts.

Legislative Amendments in 2025

Just weeks before the Branson decision, the Washington Legislature enacted amendments to the EPOA, effective July 27. These changes both clarify and recalibrate employer obligations:

• Cure period: Employers have five business days after written notice to correct a deficient posting. This temporary safe harbor is available through July 27, 2027.
• Third-party postings: Employers are not liable for postings scraped or copied without authorization to third-party websites.
• Fixed wages: Employers may list a fixed wage rather than a range under certain circumstances.
• Graduated penalties: The flat $5,000 penalty was replaced with a graduated range of $100 to $5,000, depending on employer size and willfulness.

These amendments provide some relief but do not blunt the central effect of Branson: an expansive applicant pool eligible to assert claims.

Unresolved Questions After the Branson Decision

While the court's ruling clarified statutory meaning, it left unresolved several critical issues that will shape future litigation and compliance strategies.

1. Private Versus Administrative Enforcement

The EPOA contemplates administrative enforcement by the Washington Department of Labor and Industries. What remains unclear is whether individuals may always bring private lawsuits directly, or whether they must exhaust administrative remedies first.

If private lawsuits remain available without exhaustion, employers face a higher risk of class actions and plaintiff-driven litigation.

2. Standing and Injury-in-Fact

By rejecting a genuine interest requirement, the majority of the court opened the door for applicants with no real intent to work for an employer to file claims. Future cases will test whether such applicants can establish constitutional standing.

Courts may hold that a technical violation — receiving a posting without full disclosure — constitutes a sufficient injury, or they may require a more concrete loss, such as diminished employment opportunity.

3. Statutory Damages Without Actual Harm

Washington's graduated penalty scheme imposes fines even where applicants may not have suffered financial harm. Future litigation may challenge whether awarding statutory damages absent actual loss is constitutionally permissible. This is particularly relevant if opportunistic applicants seek damages for postings that caused no tangible injury.

4. Constitutional Challenges

Defendants may raise broader constitutional arguments, including concerns about due process. For instance, penalties for technical errors, especially where employers acted in good faith, could be challenged as disproportionate.

Additionally, ambiguities around what constitutes a "posting" or when a wage range versus a fixed amount must be disclosed could trigger vagueness claims.

Lastly, courts may be asked whether legislative authorization of statutory damages without injury intrudes on judicial powers.

Washington in the National Landscape

Washington's legislation now sits alongside a growing patchwork of state pay transparency laws. Comparing Washington to other jurisdictions highlights both similarities and key differences employers should be aware of when developing their compliance strategies.

Colorado

Colorado's Equal Pay for Equal Work Act, which originally passed in 2019 and took effect in 2021, requires salary ranges and benefits in postings, bans pay-history inquiries, and imposes recordkeeping duties.

Enforcement is primarily administrative, with the Colorado Department of Labor and Employment emphasizing correction before punishment. Employers have responded by tightening compliance measures or limiting remote job postings to avoid the rules. Colorado's emphasis on administrative enforcement contrasts with Washington's broader private litigation exposure.

California

Passed in 2022, California's S.B. 1162 imposes layered obligations, including wage range disclosures and detailed pay data reporting for larger employers.

Enforcement includes both administrative oversight and potential private actions, with significant penalties for incomplete disclosures or faulty reporting. California's law illustrates how overlapping posting and reporting requirements can multiply compliance risks.

New York

New York's pay transparency law, S.9427-A/A.10477, which passed in December 2022, applies to employers with four or more employees and requires salary ranges in postings.

Enforcement rests with the New York State Department of Labor, which imposes escalating penalties for repeat violations. Importantly, New York does not provide a general private right of action, reducing the risk of opportunistic suits. This is a notable difference from Washington, where Branson increases the likelihood of private enforcement.

Implications for Employers

Employers in Washington now face heightened risk from job postings that omit required disclosures. Because any applicant may have standing to sue, even minor or technical mistakes could create significant liability exposure. The risk is amplified for larger employers, where a single noncompliant posting could draw dozens or hundreds of applicants, each with a potential claim.

Employers should treat compliance as a strategic risk-management issue, not a routine administrative detail. The key steps are preventive: building systems that ensure postings are compliant before they are published and establishing protocols to respond quickly to deficiencies.

HR Compliance Steps for Washington Employers

The following steps can help HR teams, recruiters and hiring managers audit and maintain compliance under the EPOA after the Branson decision.

Job postings should always include a salary or wage range — or a fixed wage where permitted by law — as well as details about available benefits such as healthcare, retirement plans and paid leave. Employers must also ensure that these disclosures remain consistent across all platforms, including internal systems, external postings and third-party job boards.

To maintain compliance, organizations should rely on standardized posting templates that have been vetted by HR and legal teams. No posting should go live without review, and centralized systems should be used for the creation and distribution of job advertisements.

Employers should also actively track where postings appear, monitoring both job boards and aggregators for scraped or reposted ads that may omit legally required disclosures. When unauthorized or incomplete postings are discovered, companies must document their efforts to correct them.

In situations where an agency or regulator notifies an employer of a deficient posting, a cure period response plan should be in place. This plan should allow the organization to respond within five business days, assign responsibility for compliance to HR or legal staff, and keep thorough records of all corrections made during the cure period.

Training and awareness are also essential. HR staff, recruiters and hiring managers should be trained on disclosure requirements, with refresher training provided annually or when statutory changes occur. Internal guidance should circulate on how to determine and communicate wage ranges accurately.

Proper documentation supports compliance and litigation preparedness. Employers should maintain records of all postings and revisions, retain evidence of salary range calculations and benefit summaries, and document internal communications about compliance efforts.

Finally, organizations should be proactive about risk management by establishing protocols for handling applicant complaints and developing strategies for contesting standing or damages if litigation arises.

Conclusion

The Branson decision broadens the reach of Washington's Equal Pay and Opportunities Act by making clear that any applicant, regardless of intent, may assert a claim if a job posting omits required disclosures. While recent legislative amendments provide some protections — including a temporary cure period and graduated penalties — unresolved questions about enforcement, standing and damages leave employers exposed to uncertainty.

Employers in Washington should act now to review their job posting practices, centralize compliance controls and prepare for the possibility of both administrative and private enforcement. Compared to Colorado, California and New York, Washington's broad applicant definition and potential for private litigation put it on the broader end of the spectrum relating to potential plaintiffs.

By adopting a structured compliance program and using tools like the practical steps above, employers can reduce risk, demonstrate good faith and be better positioned to navigate future developments as courts and legislators continue to clarify the contours of the various pay transparency laws.

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The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.