Washington Supreme Court Defines “Applicant” Under the Equal Pay and Opportunities Act

On September 4, 2025, the Washington Supreme Court issued its decision in Branson v. Washington Fine Wine & Spirits, LLC. [1] holding that an “applicant” under the Equal Pay and Opportunities Act (EPOA) does not need to be bona fide or otherwise apply in good faith to seek damages under the statute.

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 to the EPOA 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 or salary range and
• General description [4] of all benefits and other compensation offered.

If an employer violated the statute, an employee and/or applicant who applied to the noncompliant job post, could seek actual damages or statutory damages of $5,000, whichever was greater, plus interest, costs, and attorneys’ fees.[5] These amendments have led to over 300 class actions, nearly all filed in King County, Washington.

The 2025 Amendments: Limited Relief for Employers

Recognizing the consequences of the 2022 amendments, the legislature added two employer-friendly provisions that took effect on July 27, 2025.

First, a five-day cure period was added to allow employers to correct non-compliant 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 and changes, shields the employer from damages.[6]

Second, the statute replaced the prior penalty (actual damages or $5,000, whichever is greater) 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 behind the violation.[7]

The Branson Decision 

Branson answered the certified question: who qualifies as a “job applicant” entitled to statutory remedies under the EPOA? Employers had hoped the court might recognize a “bona fide applicant” or “good faith” limitation that would protect them from litigation by individuals applying solely to harvest statutory penalties.

However, in a 6-3 decision, the Washington Supreme Court 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] According to the Court, an applicant just needs to be a “living human.”

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. The 2025 amendments allow some reprieve, as they introduced the five-day cure period and sliding scale damages of $100 – $5,000. However, the five-day cure period does not appear to be retroactive, and it is unclear whether the new damages section applies retroactively to job postings and lawsuits filed between January 1, 2023, and July 26, 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.

Conclusion: Compliance Going Forward

While Branson was an unfortunate ruling for employers, it was a limited holding that leaves open many legal questions about the EPOA, including constitutional concerns and defenses. Moving forward, employers should make efforts to ensure job postings comply with the EPOA and that all notices of noncompliant postings are corrected promptly. Strategies to assist with compliance include:

• Implementing centralized posting review systems to ensure compliance before publication;
• Checking job postings after they have been published to confirm all required information is listed;
• Implementing policies to ensure only appropriate and trained personnel are posting jobs;
• Auditing third-party platforms regularly, since liability may attach beyond an employer’s own career page;
• Establishing rapid response protocols to cure defective postings within five business days; and
• Training HR and hiring managers to understand the EPOA requirements and monitor future EPOA developments.

For questions or guidance how this legal development may impact your organization, please reach out to your GRSM attorney or the authors of this legal alert.