On September 4, 2025, the Washington Supreme Court issued its landmark decision in Branson v. Washington Fine Wine & Spirits, LLC,[1] fundamentally reshaping the landscape of pay transparency litigation in Washington state. This ruling demands immediate attention from every employer operating within Washington’s borders, as it dramatically expands potential liability under the Equal Pay and Opportunities Act (EPOA) in ways that could prove exceptionally costly for unprepared businesses.

The Equal Pay and Opportunities Act: Legislative Evolution Toward Transparency

The Original Framework (2019)

Before Washington expanded the Equal Pay and Opportunities Act in 2019, employers had no obligation to share pay information upfront. Instead, salary ranges were revealed only if an applicant asked, and even then, only after the employer had already made a conditional offer.[2] This reactive approach meant candidates frequently navigated entire application processes—submitting materials, participating in interviews, and engaging in preliminary negotiations—before discovering whether compensation aligned with their expectations.

While this system preserved employer flexibility in negotiations, it drew substantial criticism for perpetuating pay inequities and creating inefficiencies that wasted both applicants’ and employers’ time and resources.[3]

The 2023 Transformation: Mandatory Upfront Disclosure

Recognizing these criticisms, the legislature enacted comprehensive amendments in 2022 that fundamentally restructured the disclosure framework. Effective January 1, 2023, RCW 49.58.110 mandated that employers with 15 or more employees include the following in every job posting:

• The wage scale, salary range, or fixed amount of compensation

• General benefit descriptions[4]

This obligation was not limited to an employer’s own website. The statute made clear that the requirement applied across the board, covering postings on third-party platforms such as Indeed, LinkedIn, and Glassdoor. In other words, wherever an employer advertises a position, the compensation information and benefits must be disclosed.

The 2023 framework came with real consequences. It imposed strict liability, meaning intent did not matter. An employer could be held liable even for technical missteps. Any “job applicant or employee” had standing to sue, and the remedies were significant: actual damages or statutory damages of at least $5,000 per violation, plus interest, costs, and attorneys’ fees.[5]

Critically, the framework provided no opportunity to correct mistakes. Even technical errors could trigger class actions in which damages multiplied across hundreds or thousands of applicants.

The 2025 Refinements: Limited Relief for Employers

Recognizing the potentially harsh consequences of the strict liability regime, the legislature added two employer-friendly provisions in 2025.

First, a five-day cure period now allows employers to correct defective postings without penalty. If notified of a violation, an employer has five business days to fix it or, in the case of a third-party posting site, to demand the correction. Timely action shields the employer from damages.[6]

Second, the statute replaced the flat $5,000 penalty floor with a sliding scale. Courts and the Department of Labor & Industries may now award statutory damages ranging from $100 to $5,000 per violation, giving decision-makers discretion to tailor remedies to the circumstances.[7]

The Branson Decision: Rejecting the “Bona Fide Applicant” Defense

Against this statutory backdrop, the Branson case presented what initially appeared to be a narrow question: who qualifies as a “job applicant” entitled to statutory remedies when job postings omit required pay disclosure? Employers had hoped the court might recognize a “bona fide applicant” or “good faith” limitation that would protect them from opportunistic litigation by individuals applying solely to harvest statutory penalties.

The Washington Supreme Court’s response was both expansive and unequivocal. The majority held that any individual who submits an application to a noncompliant job posting qualifies for relief under the EPOA, regardless of their subjective intent or genuine interest in the position.[8] This interpretation categorically rejects any inquiry into applicant motivation or good faith, fundamentally altering the risk profile for Washington employers.

Justice Madsen, writing for the majority, rejected the idea that only “bona fide” applicants should be entitled to remedies under the Equal Pay and Opportunities Act. The court held that a “job applicant” means simply anyone who applies to a job posting, regardless of their subjective intent. In the majority’s view, broad applicant standing is necessary to achieve the legislature’s overriding purpose of ensuring pay transparency and maximum compliance, even if that approach increases the risk of litigation.[9]

Justice Gordon McCloud dissented. She warned that the majority’s expansive interpretation effectively invites opportunistic lawsuits. By allowing any individual to apply to a noncompliant posting solely to collect statutory damages, she argued, the court risks incentivizing a “cottage industry” of bounty-hunting plaintiffs. In her view, the statute should protect genuine job seekers, those applying with the intent to secure an offer, not individuals chasing penalties.[10]

Strategic Implications: The New Compliance Imperative

The Retroactivity Question

The Branson decision lands in the middle of a shifting statutory framework. While the 2025 amendments introduced an important five-day cure period and replaced the flat minimum $5,000 penalty floor with a sliding scale, those provisions took effect on July 27, 2025. What remains unsettled—and deeply consequential—is whether these employer-friendly refinements apply retroactively to job postings and lawsuits filed between January 1, 2023, and July 27, 2025. Until courts or the legislature provide clarity, employers who posted noncompliant listings during that period face potential exposure without the benefit of a cure period or calibrated damages.

Heightened Exposure for 2023–2025 Postings

For employers who may have issued job postings in the first wave of the 2023 pay transparency regime, the risk profile is stark. A single noncompliant listing from that window could still generate statutory damages across an entire applicant pool, potentially multiplying into six- or seven-figure liability if the 2025 amendments are deemed non-retroactive. This unresolved issue significantly raises the stakes for class litigation strategies in Washington.

Compliance Going Forward

For postings made after July 27, 2025, the landscape is more forgiving but still exacting. Employers must:

• Implement centralized posting review systems to ensure compliance before publication

• Audit third-party platforms regularly, since liability attaches beyond an employer’s own career page

• Establish rapid-response protocols to cure defective postings within five business days

• Train HR and hiring managers to understand both the 2023 disclosure requirements and the 2025 enforcement refinements

Conclusion: Uncertainty with Teeth

The court’s decision in Branson underscores that pay transparency under the EPOA is enforceable law, not aspirational policy. The lack of a bona fide applicant requirement ensures broad standing and aggressive enforcement. For employers, the real peril lies in the gray zone: postings made between 2023 and 2025, where retroactivity of the cure period and sliding-scale damages remains unresolved. Until that question is settled, Washington employers must treat every legacy posting as a potential liability minefield and every future posting as an opportunity to demonstrate airtight compliance.

Gordon Rees Scully Mansukhani presents the latest insights from our Government Contracts group, offering a comprehensive overview of recent significant decisions, regulatory changes, and essential updates for businesses contracting with federal and state governments. Our team compiled the most pertinent legal developments to keep you informed in the dynamic landscape of government contracts.

Tune in to The Essential GovCon Brief podcast on Spotify or YouTube for an in-depth discussion of the issues highlighted here.

Agency Update

FAR Council Issues Final Rule Raising Acquisition Thresholds for Inflation

On August 27, 2025, the Federal Acquisition Regulatory (FAR) Council published a final rule adjusting numerous acquisition-related thresholds across the FAR to account for inflation. This rule, which takes effect on October 1, 2025, is issued under 41 U.S.C. § 1908, a statute that requires review and inflation adjustment of statutory thresholds every five years based on the Consumer Price Index for All Urban Consumers (CPI-U).

The changes increase several key thresholds, including the micro-purchase threshold, the simplified acquisition threshold (SAT), and the levels that trigger certain justification and approval requirements, as well as the cost or pricing data threshold and subcontracting plan requirements. The FAR Council also adjusted non-statutory thresholds using the same inflation-based methodology. Certain thresholds tied to statutes such as the Davis-Bacon Act, Service Contract Labor Standards, performance and payment bonds, and trade agreements are excluded from this rule.

One area in which the rule makes a noticeable impact is contingency operations. A “contingency operation” refers to a military operation designated by the Secretary of Defense in which U.S. armed forces are or may become involved in hostilities or a situation in which active duty is required during a national emergency declared by the president or Congress. In practice, contingency operations often involve military deployments, disaster relief, or overseas stability missions. For these circumstances, the FAR sets higher micro-purchase and simplified acquisition thresholds to give contracting officers more flexibility and speed in urgent or unpredictable environments.

Key Threshold Increases

1. Micro-Purchase Threshold (FAR 2.101)

The micro-purchase threshold sets the dollar limit under which agencies can buy goods and services directly, without seeking competitive quotes, to streamline low-value purchases.

• General Purchases: from $10,000 → $15,000

• Domestic Contingency Operations: from $20,000 → $25,000

• Overseas Contingency Operations: from $35,000 → $40,000

2. Simplified Acquisition Threshold (SAT)

The simplified acquisition threshold marks the level below which agencies can use streamlined buying procedures to reduce paperwork and speed up contract awards.

• Standard: $250,000 → $350,000

• Domestic Contingency Operations:  $800,000 →  $1 million

• Overseas Contingency Operations: :  $1 million →  $2 million

• Humanitarian/Peacekeeping Operations: $500,000 → $650,000

3. Justifications for Other Than Full and Open Competition (FAR 6.304)

When agencies award a contract without full and open competition, the justification must be approved at increasingly senior levels depending on the dollar value. The inflation adjustment raises those approval thresholds as follows:

• Contracting Officer Approval: from $750,000 → $900,000

• Competition Advocate Approval: from $15 million → $20 million

• Head of Procuring Activity Approval: from $75 million → $90 million

• Senior Procurement Executive (DoD, NASA, Coast Guard): from $100 million → $150 million

4. Cost or Pricing Data Threshold (FAR 15.403-4)

The rule also raises the threshold at which contractors must submit “cost or pricing data,” which is detailed information about costs, such as labor, materials, and overhead, that the government uses to determine whether a price is fair and reasonable in the absence of market competition. The new limits are:

• Pre-July 1, 2018: $750,000 → $950,000

• Post-July 1, 2018: $2 million → $2.5 million

5. Subcontracting Plan Threshold (FAR 19.702)

The subcontracting plan threshold refers to the point at which large businesses must submit a plan showing how they will provide subcontracting opportunities for small businesses. These plans outline goals for awarding a share of the work to small, disadvantaged, veteran-owned, women-owned, and HUBZone businesses. Under the new rule, the thresholds increase as follows:

• Prime Contracts: $750,000 → $900,000

• Construction: $1.5 million → $2 million

6. Simplified Procedures – Commercial Products/Services (FAR 13.500(a))

Simplified procedures for commercial products and services allow agencies to use easier, less formal buying methods when acquiring widely available items, up to the stated dollar cap.

• Standard Threshold: $7.5 million → $9 million

• Special/Emergency Threshold: $15 million cap (unchanged)

FAR Council Finalizes Clarification on SAM Pre-Award Registration Timing

On August 7, 2025, the FAR Council issued a final rule that clarifies when contractors must be registered in the System for Award Management (SAM) to compete for federal contracts. The rule adopts, without change, the interim rule published in 2023 and is now effective.

The clarification is simple but important: contractors must be registered in SAM at two points only—when submitting an offer and at the time of contract award. Continuous registration during the period between proposal submission and award is not required. In the past, agencies and offerors often treated continuous registration as mandatory, which created unnecessary risk of disqualification if a registration briefly lapsed.

This change provides welcome relief, particularly for small businesses, by removing the administrative burden of ensuring uninterrupted registration throughout what can sometimes be a lengthy procurement process. At the same time, contractors should remember that SAM registration must remain active once a contract is awarded and throughout performance until final payment.

What This Means for Contractors

• No Penalty for Brief Lapses: A temporary gap in SAM registration between proposal and award will not automatically disqualify an offeror.

• Less Administrative Stress: Contractors no longer need to worry about losing eligibility because of minor, mid-process lapses in registration.

• Post-Award Obligations Remain: Active registration in SAM is still required during contract performance and through final payment.

Takeaway

The final rule restores clarity and flexibility to the SAM registration requirement. By narrowing the focus to the two critical moments, bid submission and contract award, the FAR Council has removed a technical obstacle that often causes disproportionate consequences. Contractors should still take care to maintain SAM registration but can be confident that minor lapses between submission and award will no longer derail their bids.

Recent Decisions

Court Remands SDVOSB Status Protest due to Deficiencies in OHA’s Status Determination

In Veteran Elevated Solutions, LLC v. United States, the Court of Federal Claims reviewed a protest over a Department of Veterans Affairs elevator upgrade contract reserved for service-disabled veteran-owned small businesses (SDVOSBs). The VA awarded the contract to Armstrong Elevator Company (AEC), but competitor Veteran Elevated Solutions (VES) challenged the award on the grounds that AEC’s owner, Roy Armstrong, did not exercise the control required for SDVOSB eligibility.

The SBA’s Office of Hearings and Appeals (OHA) initially denied VES’s protest, but its decision raised concerns. OHA relied heavily on AEC’s 2022 certification file and a 2023 VA disability letter while offering little explanation of how it evaluated the new evidence the parties submitted regarding eligibility as of the bid date, April 29, 2024. The court identified several deficiencies in OHA’s analysis:

• Outside Business Interests: VES alleged that Mr. Armstrong’s management of other businesses limited his ability to devote the time and attention necessary to control AEC. Under SBA regulations, a veteran must have ultimate authority over both long-term decision making and day-to-day operations, and outside employment that interferes with those obligations can defeat SDVOSB status. OHA’s decision did not meaningfully address these conflicts.

• Tax Records: VES pointed to AEC’s tax records, which allegedly reflected fluctuating levels of Mr. Armstrong’s compensation and time commitment to the company over the years. These records could have shed light on whether he consistently worked full-time for AEC or divided his efforts among other ventures. OHA failed to explain how, or if, these records factored into its conclusion.

• Reliance on Limited Evidence: OHA placed significant weight on attorney arguments and a signed statement from Mr. Armstrong but did not explain why this was more persuasive than the affidavits and exhibits provided by both parties.

• Day-to-Day Management Allegations: VES specifically argued that non-veteran employees, including a senior manager, may have exercised real operational control, raising doubts about whether Mr. Armstrong was directing daily operations in April 2024. OHA’s decision did not analyze these claims or explain why it found AEC’s evidence sufficient to rebut them.

Because OHA did not demonstrate how it weighed the evidence or responded to these key issues, the court could not determine whether its conclusion that AEC was eligible as an SDVOSB at the time of proposal was supported by substantial evidence. The court remanded the case to OHA, ordering it to reevaluate AEC’s eligibility, review all of the evidence submitted by both sides, and provide a clearer rationale for its findings. Contract performance is stayed until OHA issues a new decision.

Contractor Takeaway

This decision highlights that SDVOSB eligibility must be proven as of the bid date, not just at the time of certification. Contractors must be prepared to show that the service-disabled veteran truly controls the company, with evidence covering both strategic authority and daily operations. Outside business commitments, compensation records, and the actual role of other managers can all be relevant in assessing control. If challenged, OHA must analyze this evidence, not simply rely on outdated certification files or broad statements. For SDVOSBs, the lesson is clear: keep detailed, up-to-date documentation of ownership and control, and be ready to demonstrate that the veteran’s leadership is both real and continuous.

Citation: Veteran Elevated Solutions, LLC v. United States, No. 24-1882, 2025 WL 2180774 (Fed. Cl. Aug. 1, 2025).

GRSM Government Contracts Practice Group

GRSM’s Government Contracts team has considerable experience defending and enforcing the rights of our contractor clients in disputes against government entities and private businesses. In addition to litigating claims in state and federal courts, we routinely handle matters before administrative tribunals, such as the Government Accountability Office, the Small Business Administration, and the Armed Services Board of Contract Appeals.

Our team of attorneys is located throughout the United States, which allows the firm to represent contractors, regardless of size, and in a wide variety of industries, including defense, information technology, construction, and aerospace, among others.

Please contact Patrick Burns, Meredith Thielbahr, and Laegan Meyers for further information or with any questions.