Washington State Clarifies New Requirement to List Compensation and Benefits in Job Postings – Publications

Washington State Clarifies New Requirement to List Compensation and Benefits in Job Postings – Publications

LawFlash

December 13, 2022

The Washington State Department of Labor and Industries (L&I) supplied much-anticipated steerage on Washington’s new job posting necessities. Effective January 1, 2023, employers in Washington should embody pay ranges and a normal description of advantages and different compensation in all job postings.
BACKGROUND
Since July 28, 2019, Washington has required employers to, upon request and post-offer (1) present exterior job candidates with the minimal wage or wage for the place and (2) present inner job candidates with the wage scale or wage vary for the brand new place. See HB 1696.
Joining a wave of laws in Colorado, New York City, and California, SB 5761 now requires employers with 15 or extra staff to embody in every job posting (1) the wage scale or wage vary, (2) a normal description of all advantages, and (3) a normal description of different compensation to be provided to the employed applicant. RCW 49.58.110.
RCW 49.58.110(1) defines a “posting” as “any solicitation meant to recruit job candidates for a particular accessible place, together with recruitment executed straight by an employer or not directly by means of a 3rd celebration, and contains any postings executed electronically, or with a printed arduous copy, that features {qualifications} for desired candidates.”
A job applicant or an worker could both file a criticism with L&I or file a civil motion for precise damages, statutory damages equal to precise damages, or $5,000 (whichever is larger), curiosity, prices, legal professional’s charges, injunctive reduction, and reinstatement. If L&I finds that an employer violated this part, it might additionally order a civil penalty of up to $500 for the primary violation and up to $1,000 or 10% of damages (whichever is larger) for a subsequent violation.
WHAT’S NEW
On November 30, 2022—with only one month remaining earlier than SB 5761 goes into impact—L&I issued Administrative Policy ES.E.1 (ES.E.1), which addresses lots of the open questions concerning compliance with the brand new job posting requirement. This coverage displays L&I’s steerage in the interpretation and software of the legislation. The under summarizes L&I’s steerage.
Covered Employers
Employers are coated by the job posting requirement in the event that they (1) have 15 or extra staff worldwide and (2) interact in any enterprise, business, occupation, or exercise in Washington. RCW 49.58.010(5), RCW 49.58.110(3), ES.E.1(3).
Notably, the legislation applies to any employer who conducts enterprise exercise in Washington, no matter whether or not the corporate has any staff in Washington or any bodily presence in Washington.
Covered Job Postings
This legislation solely applies to postings that embody {qualifications} for the particular place. Qualifications embody, however usually are not restricted to, particular information, expertise, or talents.
For instance, the next examples wouldn’t be thought-about coated “job postings” as a result of they don’t listing {qualifications} and/or the particular place:

A window signal that reads, “Help wished.”
A window signal that reads, “Help wished. Part-time receptionist. Experience wanted.”
An internet site banner that reads, “Hiring now—All jobs. Food handler’s allow required.”
A social media submit that reads, “Warehouse jobs accessible; apply now on-line. Weekend shifts required.”
An digital reader board outdoors of a enterprise that reads, “Help wished—Server. Offering minimal wage plus suggestions.”

By distinction, the next examples are thought-about coated “job postings”:

An digital reader board outdoors of a enterprise that reads, “Help wished—Server. Food handler’s certification wanted. Offering $24.00–$26.00 per hour, medical advantages, 70 trip hours per 12 months, and $500 sign-on bonus.”
A social media submit that reads, “Seeking candidates for a billing specialist place. Must have two years of medical invoice processing expertise. $30.00–$40.00 per hour, medical, imaginative and prescient, and dental advantages, 401k retirement plan, and inventory choices accessible. More info may be discovered by way of hyperlink right here.”
An on-line job board posting that reads, “We are searching for a professional applicant who has expertise with use of spreadsheets and database software program for an information analyst function. Salary vary is $60,000–$80,000 per 12 months. Medical, imaginative and prescient, dental advantages, tuition reimbursements, and inventory choices accessible for the employed applicant. More info may be discovered by way of hyperlink right here.”

Remote Jobs
A posting for a distant function should adjust to Washington legislation if the place could possibly be carried out by a Washington-based worker. Employers can not keep away from protection by excluding Washington candidates—e.g., “Washington candidates needn’t apply.”
Whether an worker is a “Washington-based worker” is determined by a wide range of fact-specific components, together with, for instance, the worker’s residence and base of operations. L&I Administrative Policy ES.A.13: Minimum Wage Act – Washington-Based Employee (5/22/2019).
A “Washington-based worker” might doubtlessly embody staff who stay outdoors of Washington and/or work outdoors of Washington.
There is a slender exception to the posting requirement for jobs which are to be carried out completely outdoors of Washington. For instance, the out-of-state exception would apply to jobs tied to worksites bodily positioned completely outdoors of Washington equivalent to waitstaff at restaurant places in different states.
Covered Applicants
All candidates, together with present staff, who apply to a submit recruiting Washington-based staff with a coated employer are coated by the legislation.
Listed Wage Scale or Salary Range
All coated job postings should embody the employer’s “most affordable and genuinely anticipated” wage scale or wage vary for the job. The vary should embody the bottom to the best pay established prior to posting. For instance, it’s non-compliant to submit “$60,000 per 12 months and up” or “up to $29/hour.”
If the wage scale or wage vary modifications after the posting has been revealed, the employer should replace the posting to mirror the up to date wage scale or wage vary.
Probationary Period: If an employer intends to present decrease pay for a probationary interval or different preliminary timeframe, the job posting should listing each the beginning pay vary/charge and all the scale or vary. For instance, a compliant posting might state, “New hires begin between $60,000 and $65,000 per 12 months, however all the wage vary is $60,000-$70,000 per 12 months. The employed applicant will likely be provided pay inside the total vary primarily based on {qualifications} and skilled expertise.”
Job Opening for Various Job Titles: If an employer has a job opening that could possibly be crammed with varied job titles, relying on expertise, the employer should listing all potential wage scales or wage ranges—for instance:

Software Engineer I: $70k-$90k per 12 months
Software Engineer II: $75k-$100k per 12 months
Software Engineer III: $80k-$120k per 12 months

Commissions: If the job is compensated by fee, the job posting ought to embody the fee charge or charge vary (share or in any other case) that will be provided to the employed applicant—for instance, “5-8% of internet sale worth per unit.”
Piece Rate: If the job is compensated by piece charge, the job posting ought to embody the piece charge or wage scale plus piece charge—for instance, “$0.55-$0.75 per pound of strawberries picked.” If the job is compensated by the higher of a bit charge or hourly charge, the job posting ought to embody the piece charge or wage scale and the hourly charge—for instance, “The higher of $0.75 per pound of strawberries picked or $19 per hour.”
General Description of All Benefits
All coated job postings should embody a normal description of all advantages provided for the particular accessible place, which incorporates, however shouldn’t be restricted to, healthcare advantages, retirement advantages, any advantages allowing paid days off (together with extra beneficiant paid sick depart accruals, parental depart, and paid day without work or trip advantages), and another advantages that should be reported for federal tax functions, equivalent to fringe advantages. If the overall description of advantages modifications after a posting has been revealed, the job posting should be up to date.
Insurance: Each particular sort of insurance coverage provided should be listed in the job posting. For instance, “Employees (and their households) are coated by medical, dental, imaginative and prescient, and primary life insurance coverage.”
Retirement Plans: Each retirement plan possibility provided should be listed in the job posting. For instance, “Employees are in a position to enroll in the Company’s 401(ok) plan or deferred compensation plan.”
Paid Time Off or Vacation: If an employer gives PTO or trip, the job posting should embody the particular variety of days or hours the employed applicant would count on to obtain. For instance, “Employees may even obtain eight hours of trip depart each month.”
Paid Holidays: If an employer gives paid holidays, the job posting should embody the particular variety of paid holidays the employed applicant would count on to obtain. For instance, “Employees may even obtain 10 paid holidays.”
More Generous Paid Sick Leave: If an employer gives paid sick depart that’s extra beneficiant than that supplied by Washington state or native legislation, the job posting should listing the variety of hours or days the employed applicant would count on to obtain. For instance, “Employees will obtain three hours of paid sick depart for each 40 hours labored.”
General Description of Other Compensation
All coated job postings should embody a normal description of all different compensation to be provided to the employed applicant in addition to their wage vary or wage scale. “Other compensation” contains, however shouldn’t be restricted to, bonuses, commissions, profit-sharing, or inventory choices. For instance, “Hired applicant will likely be in a position to buy firm inventory, obtain annual bonuses, and can take part in profit-sharing.”
Linked Benefits and Compensation Information
Instead of together with advantages and different compensation particulars on the posting itself, an digital job posting could embody a hyperlink to a extra detailed description.
ANALYSIS
Although L&I’s steerage solutions some open questions, a number of necessary points nonetheless stay unanswered:

When are employers topic to this legislation if they don’t have any Washington staff or a bodily presence in Washington? What quantity of exercise qualifies as being engaged in a enterprise, business, occupation, or exercise in Washington?
For staff who earn commissions in addition to a base wage, should employers listing the particular commissions charge or charge vary?
Would the job posting requirement apply to an organization worker who posts, with out firm authorization, in their inner social media community? For instance, wouldn’t it apply if an worker posts, “We’re searching for coders fluent in JavaScript! DM me with questions.”

NEXT STEPS
Employers ought to contemplate taking steps now to adjust to the brand new legislation, together with the next:

Determining whether or not the corporate engages in a enterprise or different exercise in Washington.
Determining the wage ranges for all presently posted positions that could possibly be stuffed by a Washington-based applicant.
Reviewing present job posting templates or creating new templates to use after January 1, 2023.
Training supervisors, managers, compliance personnel, human sources, and authorized professionals on the implications of the brand new legislation—together with with respect to applicable communications with inner and exterior candidates.
Conducting a privileged pay fairness audit (both for sure positions in Washington or a broader evaluate of present pay) as a result of wage info supplied in exterior job postings will turn out to be public on January 1, 2023.
Monitoring for added rulemaking and steerage from L&I on the implementation of the brand new legislation.

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