Are contract-based non-solicitation of employee agreements enforceable in Washington?

Are Non-Solicitation of Employee Agreements Enforceable in Washington?

Yes, non-solicitation of employee agreements are enforceable in Washington, but they are subject to strict scrutiny under RCW 49.62. To be valid, these agreements must be narrowly tailored to protect legitimate business interests, satisfy specific salary thresholds, and provide adequate consideration if signed after the commencement of employment.

The Legal Framework: RCW 49.62

Washington law treats non-solicitation agreements—specifically those that restrict an employee from poaching coworkers—as a subset of restrictive covenants. While the state has moved toward banning traditional non-compete agreements for low-wage workers, non-solicitation clauses remain a viable tool for protecting human capital, provided they do not function as a de facto non-compete.

Key Requirements for Enforceability

• Legitimate Business Interest: The restriction must protect a specific interest, such as trade secrets, confidential information, or specialized training.
• Reasonableness: The scope of the restriction (duration, geographic area, and specific employees covered) must be no broader than necessary.
• Salary Thresholds: The employee must meet the state-mandated earnings threshold to be subject to the restriction.
• Disclosure: The terms must be disclosed to the employee in writing no later than the time of the initial offer of employment.

Key takeaway: If your non-solicitation agreement is so broad that it prevents an employee from working in their chosen field, a Washington court will likely strike it down as an unenforceable non-compete.

Action Item: Audit your current employment contracts to ensure they explicitly define the "legitimate business interest" being protected rather than using boilerplate language.

Salary Thresholds and Annual Adjustments

Washington law requires that restrictive covenants only apply to employees who earn above a certain amount. These numbers are adjusted annually for inflation by the Washington State Department of Labor & Industries.

If an employee's compensation falls below these thresholds, any non-solicitation clause contained within their contract is void and unenforceable as a matter of law. Furthermore, if an employer attempts to enforce a void agreement, they may be liable for actual damages, a penalty of $5,000, and the employee's reasonable attorney fees.

Action Item: Verify your employees' current W-2 earnings against the latest L&I threshold before attempting to enforce a non-solicitation clause.

Drafting for Enforceability: Best Practices

To maximize the likelihood that a court will uphold your non-solicitation agreement, follow these drafting principles:

1. Define the "Solicited" Group: Do not attempt to ban the solicitation of all employees. Limit the restriction to employees with whom the departing worker had direct contact or access to sensitive information.
2. Specify the Duration: While Washington does not set a hard cap, courts generally view restrictions exceeding 12–18 months with extreme skepticism.
3. Include a Savings Clause: Use a "blue-pencil" or reformation clause that allows a court to narrow the scope of the agreement if they find it overbroad, rather than invalidating the entire provision.
4. Provide Independent Consideration: If the agreement is signed after the employee has already started working, you must provide additional, independent consideration (e.g., a bonus, promotion, or stock options) beyond continued employment.

Key takeaway: Never rely on "continued employment" as consideration for a post-hire non-solicitation agreement in Washington; it is legally insufficient.

Action Item: If you are asking an existing employee to sign a new non-solicitation agreement, document the specific "new" consideration provided in a separate addendum.

Common Red Flags in Washington Contracts

Avoid these common pitfalls that frequently lead to litigation and loss of enforceability:

• Overly Broad Geographic Scope: Non-solicitation agreements should generally not be tied to geography, as they target specific individuals, not markets.
• "Catch-all" Language: Phrases like "any and all employees" are often viewed as punitive and unreasonable.
• Lack of Notice: Failing to provide the agreement at the time of the offer letter or before the start date can render the contract void.
• Forcing Waivers: Attempting to force employees to waive their rights under RCW 49.62 is prohibited and will result in the agreement being unenforceable.

Action Item: Review your standard offer letters to ensure they include the full text of the restrictive covenant or a clear reference to it, satisfying the statutory disclosure requirement.

Conclusion

Navigating Washington's restrictive covenant landscape requires precision. Because the law is highly sensitive to the specific wording and the employee's compensation, manual review is often prone to error. TermScore can automatically analyze your employment contracts to identify unenforceable non-solicitation clauses, verify compliance with current salary thresholds, and ensure your agreements align with the latest Washington state statutes, saving you from costly litigation and compliance risks.