USA – WASHINGTON Trends and Developments Contributed by: Alexander A Baehr and Molly Gibbons, Summit Law Group
posted position and did not suffer any injury due to the alleged insufficient disclosure. In one of the earliest orders on such a motion to dismiss, Western District of Washington District Judge Barbara Rothstein granted a motion to dismiss for lack of Article III standing, conclud- ing that “a violation of the statutory provision at issue here ‒ a job posting with no compen- sation information included ‒ is a technical or procedural violation that by itself does not mani- fest concrete injury but requires a “bona fide” applicant before there is a risk of harm” (Floyd v Insight Glob LLC, No 23-CV-1680-BJR, 2024 WL 2133370 (WD Wash 10 May 2024)). She went on to conclude that a plaintiff “must allege, at minimum, that they applied for the job with good-faith intent, and as such became person- ally exposed to the risk of harm caused by the violation”. Other pay transparency lawsuits pending in the Western District of Washington have been remanded back to state court for similar reasons. Examples include Partridge v Heartland Express Inc of Iowa, No 3:24-CV-05486-DGE, 2024 WL 4164245 (WD Wash 12 September 2024) and Spencer v Jeld-Wen Inc, No 23-CV-1757-BJR, 2024 WL 4566581 (WD Wash 24 October 2024). Recently, Western District of Washington Judge John Chun certified the following question to the Washington State Supreme Court in a pay transparency lawsuit: “What must a [p]laintiff prove to be deemed a “job applicant” within the meaning of RCW 49.58.110(4)? For exam- ple, must they prove that they are a “bona fide” applicant?” (Branson v Washington Fine Wines & Spirits, LLC, No 2:24-CV-00589-JHC, 2024 WL 4510680 (WD Wash 20 August 2024). Addi- tionally, the Department of Labor and Industries recently published draft rules interpreting the
pay transparency law, which indicate that the Department of Labor and Industries believes an applicant must be “bona fide” to be entitled to damages for violations of the law. Employers doing business in Washington state should review all current and future job post- ings to ensure compliance with the requirements of the new pay transparency law. Employment attorneys should watch for the Washington State Supreme Court’s answer to the recently certified question regarding what a party must prove to be considered a “job applicant” for the purposes of a pay transparency claim, as the answer to the certified question will impact arguments that can be raised in defence to such claims. They should also look for the Department of Labor and Industries’ final rules interpreting Washing- ton state’s pay transparency law, which will likely be issued in 2025. Washington State Supreme Court clarifies standard applicable to religious accommodation claims During the past two years, Washington ‒ like many other states ‒ has seen an influx of reli- gious accommodation lawsuits, largely aris- ing from employment separations related to COVID-19 vaccination requirements. In such lawsuits, employers commonly assert undue hardship defences. Prior to June 2023, under Washington state’s anti-discrimination law ‒ the Washington Law Against Discrimination (WLAD) ‒ and Title VII of the Civil Rights Act of 1964, an employer was required to reasonably accommo- date an employee seeking a religious accom- modation unless they could establish an undue hardship defence by showing that the proposed accommodation posed a “more than de mini- mis” cost or burden.
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