Washington Supreme Court Adopts Expansive Definition of "Job Applicant" Under EPOA Pay Transparency Statute

On 4 September 2025, the Washington Supreme Court (the Court) issued its highly anticipated decision in Branson v. Wash. Fine Wine & Spirits, LLC (Branson).¹ In Branson, the court held that any person who applies to a job posting that does not comply with the pay transparency requirements of the Washington Equal Pay and Opportunities Act (EPOA)² may seek damages under the statute, regardless of whether the individual actually intended to seek employment with the employer.  

In March 2022, the EPOA was amended to require employers to disclose salary, wage, and benefits information in all job postings.³ Pursuant to the 2022 amendment, employers that violate the EPOA were subject to broad liability for the greater of actual damages or statutory damages of US$5,000 per violation.⁴ The Court in Branson was addressing a certified question from the Western District of Washington—specifically, whether a plaintiff seeking damages must be a “bona fide” applicant or otherwise have a “good faith” basis for applying to a job posting in order to seek statutory damages under the EPOA. In reaching its holding, the Court declined to consider the subjective intent of the applicant and instead held that “any person who applies to a job posting” that does not properly disclose salary or wage information has standing to sue under the statute.  

While the case returns to the trial court, the Court’s ruling in Branson could potentially expose Washington employers with noncompliant job postings to significant penalties arising from claims brought by “tester” applicants who solely seek penalty damages under the EPOA. Although the Court dismissed the defendant employer’s concerns that its interpretation of the statute would lead to absurd results—including, among other concerns, expansive class action liability arising from a single noncompliant job posting—in her dissent, Justice McCloud expressed a concern that the majority’s ruling would result in “individuals seeking a statutory bounty unrelated to any harm suffered.”⁵   

However, Washington employers are not without any reprieve. In May 2025, the EPOA was amended to provide employers an opportunity to correct a violation of the EPOA within five business days of being notified of the violation in writing. So long as an employer corrects a noncompliant posting or contacts any applicable third-party posting entity with a demand to correct the job posting, neither the Washington Department of Labor and Industry nor a court may assess or award damages or other relief for the corrected violation. The 2025 amendments to the EPOA further provide for penalties ranging from US$100 to US$5,000 for a civil action arising from a noncompliant posting, taking into account various factors, including the willfulness with which a violation occurred and the size of the employer, in assessing the appropriate penalties. 

Branson left open questions regarding the constitutionality of the statute’s application in light of the Court’s expansive definition of “job applicant.” The dissent argued the definition espoused by the majority could cause the statute to unconstitutionally grant a right to sue to a plaintiff who would not otherwise have standing under Article III of the US Constitution. Further, the Court declined to consider whether the imposition of onerous statutory penalties arising from class action lawsuits related to a single noncompliant posting would constitute an unconstitutional penalty disproportionate to the offense under the 14th Amendment, and whether an applicant is entitled to bring a private right of action, at all, under the plain language of the EPOA. 

Going forward, Washington employers should continue to ensure that all current and future job postings on their websites or those maintained on third-party websites comply with the EOA’s pay transparency requirements and include the requisite wage or salary and benefit information. Employers should also be vigilant in ensuring any notice of noncompliant postings are promptly directed to an appropriate person or department to ensure corrections are timely made within the short five-business-day window permitted to cure any deficiencies. For employers outside of Washington, Branson is a reminder to review job posting practices for compliance with state and local pay transparency statutes.⁶ 

Our Labor, Employment, and Workplace Safety practice can assist with any questions regarding this evolving legal landscape.