Washington justices press attorneys on meaning of ‘job applicant’ in pay transparency fight

OLYMPIA, Wash. (CN) — The Washington Supreme Court is tasked with determining what exactly makes one a “job applicant” under a state pay transparency statute, as two job seekers implored the court to stick to the plain meaning during oral argument Thursday morning.

Washington amended its equal pay law in 2022 to require employers to disclose wage scale, salary range, and benefits information in all job postings starting in 2023. If a job applicant finds a posting that doesn’t comply with the requirements, they can either file a complaint with the Department of Labor and Industry or pursue a private right of action. In both cases, the applicant is entitled to statutory damages of $5,000.

Lisa Branson and Cherie Burke applied for positions at Washington Fine Wines and Spirits after the statute amendment went into effect and sued the company for failing to disclose the pay scale on the job posting. The suit, filed in the U.S. District Court of Western Washington, has been stayed until the Supreme Court can answer the question of what exactly one must prove to be a “job applicant.”

“ Rather than comply with this simple law, the defendant seeks judicial intervention to rewrite it to hamper its enforcement,” said Sidney Tribe, an attorney with Carney Badley Spellman representing the job seekers.

Tribe asked the court to confirm that the plain meaning of a job applicant is “ a person who submits an application for a job posting.”

The justices immediately had questions.

“ If a 10-year-old submits a job posting for an application, are they a job applicant?” Justice Steven Gonzalez asked.

Tribe said yes, in theory, but that, if the 10-year-old were prohibited by law from accepting that job, then there would be remedies in the court.

Justice Sheryl Gordon McCloud asked about an 18-year-old who applies for a neurosurgeon job without any medical school experience.

“They’re still a job applicant, and they are still entitled under the plain language of the statute,” Tribe said. “The point of this law is for the  employers to comply with it. The point of this law is wage transparency.”

The statute specifies that employers with 15 or more employees must “disclose in each posting for each job opening the wage scale or salary range, and a general description of all of the benefits and other compensation to be offered to the hired applicant.”

A job posting, according to the statute, is any solicitation intended to recruit candidates for a specific position whether directly through an employer or indirectly through a third party, such as job boards like Indeed or ZipRecruiter.

Tribe argued that if the legislature had intended to restrict the definition of “job applicant” to be defined only as a qualified, bona fide applicant, then it could have done so, but it would have run into the same questions discussed before the court.

The statute was initially restricted to only job applicants who received job offers but was later expanded to include all applicants.

“ The plain language of the statute does not include any kind of statement about the intent, the qualifications of the applicant. It simply says job applicant,” she said.

Washington Fine Wines and Spirits disagreed with Tribe’s interpretation of the statute and further noted that over 300 class actions regarding the statute have been filed across the state, many by the same plaintiffs.

“ There are not individual actions being filed, and individual people are not being harassed by employers,” said William Murphy, an attorney with the Baltimore-based Zuckerman Spaeder law firm.

Justice Debra Stephens asked whether the wine store believes that someone who doesn’t meet the job’s minimum requirements is a bona fide job applicant if they submit an application.

“ What we’re saying is that a person who has no interest in obtaining the job, but instead is only interested in seeing whether they can determine if an online employment site like Indeed.com has a deficient description, that they get $5,000,” Murphy said.

Gordon McCloud pushed back, noting that there are more than two possibilities in which one would apply for a job. For instance, receiving a job offer could give one leverage at their current job. Murphy conceded.

“ But if you’re not doing that — if you’re looking online to see if you can find a description that fails to comply with the statute and you want to do that because you want to be part of a class action or to file a lawsuit on behalf of hundreds of people — that’s not a job applicant,” Murphy argued.

Justice Barbara Madsen asked what low-wage job seekers must prove to comply with the wine store’s proposed interpretation.

“ Do they have to bring in all their employment records?” Madsen said. “I mean, we’re talking about people who maybe are 18 years old and wanting to work at McDonald’s.”

Murphy argued that the plaintiffs in the case have circumstances that suggest they weren’t really seeking the job in the first place. He further noted that the wine store’s job posting was in compliance on its internal job board but lost wage information when reposted on a third-party job board.

The Supreme Court did not indicate when it would rule.