New Pay Transparency Ruling Makes It Easier for Applicants to Sue

Pay transparency laws typically require employers to disclose salary and other relevant information in their job postings. But what if an applicant doesn’t really want the job – and is just testing you and hoping to see you in court for violating the rules?

A new decision from Washington state’s highest court establishes that under that state’s pay transparency law, job applicants do not need to show that they are “bona fide” or “good faith” applicants to sue under the statute.

In essence, that means that “testers” can go ahead and sue under the law – even if they aren’t really trying to get the job.

Washington Pay Transparency Law Is Put to the Test(ers)

The case involves the Washington Equal Pay and Opportunities Act, which requires employers with 15 or more employees to disclose information related to wages and benefits in all job postings. Applicants who prove a violation can be awarded statutory damages of up to $5,000.

Lisa Branson and Cherie Burke tested the scope of the law’s applicability when they applied for jobs with Washington Fine Wine and Spirits LLC, which does business as Total Wine and More and operates 13 retail stores in the state.

Total Wine posts job openings on its website, and it also uses Indeed.com and other third-party sites to find qualified job applicants.

Branson applied for a retail sales associate position through Indeed, while Burke used both Indeed and Total Wine’s website to apply for a cashier/customer service job.

Postings Did Not Comply With Pay Transparency Law

The Indeed postings did not comply with the state’s pay transparency law because they didn’t include all the required pay-related information.

Branson never interviewed for the job. Burke had an in-person interview and discussed compensation, but she declined the store’s job offer.

Both later sued Total Wine, seeking damages for the employer’s alleged violation of the state’s pay transparency law. They said Total Wine broke the law because the Indeed job postings did not include the required wage scale or salary range information.

Total Wine argued that Branson and Burke should get nothing because they were not “bona fide” job applicants and were not the kind of applicants the state’s pay transparency law is meant to protect.

The federal district court hearing the case then asked Washington state’s highest court to weigh in on the question of whether job applicants must be “bona fide” job applicants to sue and recover under the state’s pay transparency law.

It’s not clear whether Branson and Burker were acting solely as “testers,” but the question that reached the state’s highest court essentially was whether testers can recover under the law.

What Is a ‘Job Applicant’ Under the Law?

The Washington Supreme Court deemed the relevant question to be precisely what the term “job applicant” should mean under the statute.

Total Wine argued that a job applicant is not really an applicant under the law unless they “actually applied for the job with a good faith or bona fide interest in obtaining the posted job.”

Branson and Burke disagreed. They maintained that under the statute, the term “job applicant” should universally include “any person who applies to a job posting.”

In a 6-3 decision, the state’s highest court agreed with the plaintiffs.

To reach this conclusion, the majority relied on dictionary definitions of the words “applicant” and “apply,” which it said “do not rely on the subjective intent or an individual to determine whether a person is an applicant.”

 “The plain language of the term ‘job applicant’ means a person who applies to a job posting, regardless of their subjective intent in doing so,” the majority decided.

The majority also said that the law’s legislative history supported its decision to interpret the term “job applicant” broadly.

Wage Transparency Enforcement Tactics

To support its position, Total Wine pointed to a complaint form issued by the state’s department of labor and industry, which enforces the wage transparency law.

The form says the department investigates complaints that are “filed by applicants who have applied for a job in good faith and with the intent of gaining employment.” But the court’s majority was not swayed, saying the department did not have the authority to say what “job applicant” means under the statute.

Thus, the court concluded that job applicants do not have to prove they are “bona fide” job candidates to be deemed a job applicant under the state’s pay transparency law.

Understanding Pay Transparency Laws

Generally speaking, pay transparency laws require employers to share information regarding compensation with applicants – and sometimes with employees. Their goal is to reduce pay inequities and promote fairness with respect to pay.

While the subject is not federally regulated, many states and localities have their own versions of pay transparency laws. These laws have varying requirements. Explore our pay transparency compliance guide for a state-by-state overview, and review these pay transparency best practices for practical steps HR can take.

Branson v. Washington Fine Wine & Spirits, LLC, No. 103394-0 (Wash. 9/4/25).