Washington Noncompete Agreement: What's Included and Enforceability

Quick Facts — Noncompete Agreement Lawyers (Washington)

Is a Non-Compete Agreement Enforceable in Washington?

Yes. In Washington, employers are permitted to use non-compete agreements to protect legitimate business interests from former employees. A non-compete agreement is a restrictive contract that prevents employees from directly competing against or using confidential business information against former employees.

To ensure that the rights of employees are protected when entering non-compete agreements, Washington has enacted several laws that limit and regulate non-compete agreements. To be enforceable, a non-compete agreement must adhere to the following conditions:

  • Time of signing. Non-compete agreements must be signed at the time the employee accepts the job offer.
  • Acceptance after employment. If the agreement is presented to an employee after employment, there needs to be additional consideration to support the agreement.
  • Wage restriction. To participate in a non-compete agreement, the employee must make $100,000 annually or more.
  • Terminated employees. If the employee is terminated, the non-compete will only be enforced if the employer continues to pay the employee during the non-compete duration.
  • Independent contractors. Non-compete agreements will only be enforced against independent contractors if the job total exceeds $250,000 per year.
  • Performers. Performers like singers, comedians, and dancers, will only be restricted by non-compete agreements for up to three days.
  • Attorneys. Non-compete agreements cannot be enforced against attorneys.

In addition to these restrictions, to be enforceable, a non-compete agreement must be reasonable in the eyes of the court.

What is the “Three-Factor Test” for Non-Competes in Washington?

The “three-factor test” is used by courts in Washington to determine whether or not a non-compete agreement is reasonable. The three factors that courts consider are:

  1. Is the non-compete agreement necessary to protect the employer’s business?
  2. Does the non-compete impose undue hardship on the employee?
  3. Is the non-compete agreement injure the public by restricting necessary goods and services?

If the agreement cannot pass this test, it is likely that the court will rule the contract unenforceable.

How Long Does a Washington Non-Compete Agreement Last?

Under Washington statute, a non-compete agreement cannot exceed a term of 18 months. In certain circumstances, courts will allow a duration of more than 18 months only if the employer can present clear and convincing evidence that a term of more than 18 months is necessary to protect the employer’s business interests.

How Do You Get Around a Non-Compete Agreement in Washington?

In Washington State, non-compete agreements are generally disfavored by courts so there are a few ways to potentially get around these restrictive covenants.

  1. Employees can challenge the validity of the non-compete agreement if the terms are overly restrictive or impose undue hardship on the employee.
  2. Employees can attempt to negotiate with the employer if the non-compete agreement is overly restrictive to have it modified or narrowed.
  3. Some non-compete agreements contain loopholes or exceptions that can be exploited by the employee. For example, the agreement may only apply to a limited scope of job duties.
  4. Request that a court amends or “blue pencil” the agreement to make it reasonable. Washington courts have the power to modify overly broad or restrictive agreements to make them reasonable for the employee.

It's important to note that each non-compete agreement is unique and the enforceability of these agreements can vary depending on the specific circumstances.

What Voids a Washington Non-Compete Agreement?

Under Washington laws, the legislature has made it clear that workforce mobility is essential to economic growth within the state. Any non-compete agreement that goes against this principal may be void.

Non-compete agreements must adhere to all of the laws and regulations laid out by the state statutes. If any of these laws are violated or an employee is unfairly restricted by the contract, it will be deemed void.

Frequently Asked Questions

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Employer

Noncompete Agreement

Connecticut

Asked on Jul 13, 2023

Can a noncompete agreement be waived?

I am a small business owner in the retail industry and I am looking to hire a new employee. The employee has a noncompete agreement with their previous employer that I am concerned about. I want to know if it's possible for the agreement to be waived so that I can be sure I'm making the right decision in hiring this employee.

Thomas L.

Answered Jul 21, 2023

Yes, the parties to contracts can always agree to amendments and waivers. However, the former employer may have no interest in waiving the contract in this particular situation.

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Asked on Jul 11, 2023

Noncompete agreement termination options?

I recently left my job after signing a Noncompete Agreement. I am looking for a new job, but I am concerned about the restrictions in the Noncompete Agreement and how it might affect my ability to find a new job. I am looking for advice on my options for terminating or modifying the Noncompete Agreement so that I can find a new job without having to worry about any potential legal repercussions.

Merry K.

Answered Aug 15, 2023

I am a WA State employment attorney. If you didn’t receive anything in return for signing the non-compete, it may be relatively easy to get out of it. If, however, you signed in return for something, such as a severance package, it will be challenging to get out of the agreement. However, many non-compete agreements are written overly broadly and may not be enforceable under the laws of WA and other states. You may want to consult with a WA State employment attorney for a review of the documents and law(s) of the state(s) where you may want to work or set up a business. (A WA State attorney can only provide legal advice in WA, but can help you find applicable law/case decisions for other states but without providing anything beyond information, much like a law librarian).

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I recently left my job of five years and have been offered a new position with a competitor. The new employer has asked me to sign a noncompete agreement. I am concerned about the geographic scope of the agreement and need to understand what areas it would cover, and if it would prevent me from taking a position with a competitor in another state or country.

Daniel D.

Answered Jul 25, 2023

The Courts use a reasonableness standard determine if a non-compete is reasonable in time and geographic scope. It would be necessary to see the non-compete to tell you what it says, the areas it would cover and if it would prevent you from taking another position.

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Asked on Dec 12, 2023

Employee contract, such as non compete/non solicit, could having this contract ever result in criminal/jail time?

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Answered Dec 16, 2023

No, at worst, it is a breach of a contract which is a civil matter to be handled in civil court.

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Asked on Dec 5, 2024

Can my employer enforce a non-compete agreement I signed even though I was not provided any additional compensation or benefits in return?

I recently started a new job and was asked to sign a non-compete agreement as a condition of employment. However, I just found out from a colleague that my employer has been enforcing the non-compete agreement against former employees and preventing them from working in similar roles at competing companies. I am concerned because I was not given any additional compensation or benefits in exchange for signing the agreement, and I believe it may be unfair and potentially unenforceable. Can my employer legally enforce the non-compete agreement even though I did not receive any additional compensation or benefits in return?

Damien B.

Answered Dec 6, 2024

Hello! Generally, New York courts require that a non-compete agreement be supported by adequate consideration. If the agreement is signed at the beginning of employment, the job itself may serve as adequate consideration. However, if the non-compete is signed after employment begins, the employer may need to offer additional benefits, such as a raise or promotion, for the agreement to be enforceable. There are other defenses against enforcement. For a non-compete agreement to be enforceable, it must be reasonable in terms of duration, geographic scope, and the scope of activities it restricts. A court will evaluate whether the agreement is necessary to protect the employer’s legitimate business interests, such as confidential information or customer relationships. If not, a court could rule the noncompete is not enforceable.

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