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Here's What a Salary Transparency Class Action Looks Like

By Bill Josey wjosey@staffinglaw.com

Insight Global named in suit for allegedly nonconforming tech staffing job post - noncompliant employers face large damage awards in Washington

Last week I provided a Salary Transparency Update that reported on class actions being brought in Washington state against employers for failure to include salary ranges in their postings. Plaintiff-side employment lawyers are on the prowl for non-compliant job posters, and when they find one, they pounce. Witness what happened to staffing giant Insight Global after posting a job opening for a Network Engineer. A lawsuit filed in Seattle, Washington, on November 2nd (copy attached below) alleges in pertinent part:

14.       From January 1, 2023 to the present, Plaintiff and more than 40 Class members applied to job openings with Defendant for positions located in Washington state where the postings did not disclose the wage scale or salary range.
15.       On or about September 20, 2023, Plaintiff applied for a job opening in the greater Seattle area with Defendant. The posting for the job opening did not disclose the wage scale or salary range. A true and correct copy of Defendant's job posting is attached hereto as Exhibit 1.
16.       Plaintiff and the Class members lost valuable time applying for jobs at Defendant for which the wage scale or salary range was not disclosed to them.
17.       As a result of Plaintiff's and Class members' inability to evaluate the pay for the position, negotiate that pay, and compare that pay to other available positions in the marketplace, Plaintiff and the Class members were harmed.
 18.       As a result of Defendant's actions and omissions, Plaintiff and the Class have been damaged in amounts to be proven at trial.
Class Definition. Under Civil Rule 23(a) and (b)(3), Plaintiff brings this case as a class action against Defendant on behalf of the Class defined as follows (the "Class"):
All individuals who, from January 1, 2023 through the date notice is provided to the Class, applied for a job opening in the State of Washington with Defendant, where the job posting did not disclose the wage scale or salary range for the position.

If you think this is a trivial omission, then you would be mistaken. Here is the damage claim at the end of the Plaintiff's complaint:

Statutory damages equal to Plaintiff's and the Class members' actual damages or five thousand dollars, whichever is greater, pursuant to RCW 49.58.070(1);
Costs and reasonable attorneys' fees pursuant to RCW 49.58.070(1);

That is $5,000 to each applicant who applied to a non-conforming post, plus attorneys' fees, pursuant to this section of the statute:

an employee may bring a civil action against an employer for violation of [the salary posting law] for actual damages; statutory damages equal to the actual damages or five thousand dollars, whichever is greater; interest of one percent per month on all compensation owed; and costs and reasonable attorneys' fees.

There are no real damages from a salary posting violation, of course ("Plaintiff and the Class members lost valuable time applying for jobs at Defendant for which the wage scale or salary range was not disclosed to them"). However, the Washington Legislature's "statutory damages" make up for that. This, dear reader, is what we in the legal profession call "easy pickings." If a class is certified, the court will allow discovery and will instruct the defendant to supply to the Plaintiff's lawyers the name and contact information of each and every applicant to a non-conforming add. Eventually, these individuals will receive a court approved communication advising them that they can be entitled to a payment of $5,000 for simply responding to a job posting. All they have to do is check a box and return a form. Really.

If you are not a Washington state employer, there is a question (yet to be decided) as to whether they can apply this law to you just for posting a job that is merely seen in the state. But that is what the law seems to imply, and why take a chance of being the test case? Salary (and benefits) posting is here to stay and expanding nationally. You best insurance is to include a range on all postings now, and don't worry about what a particular state has to say about it.

Notably, the Plaintiff in this case is a man, even though the understood purpose of transparency laws, including this one, is to help level up the gender gap between men and women by giving women actual pay information. But the law appears to be gender neutral when it comes to who is entitled to damages. This gives anyone, whether historically disadvantaged or not, a shot at the free money from an employer that was simply trying to fill a job.