Non-Solicitation Clauses in Washington State: Legal Analysis

Washington's 2020 Non-Competition Covenants Act

Washington enacted RCW 49.62 (the Non-Competition Covenants Act) effective January 1, 2020. This law imposed significant restrictions on non-compete agreements, including income thresholds and a presumptive 18-month maximum duration. Critically, the statute exempts non-solicitation agreements from its primary restrictions.

What the Exemption Means

RCW 49.62.010(4) defines a noncompetition covenant as restricting an individual from working for another employer or operating a business. Because non-solicitation clauses restrict contact with specific customers rather than all competitive work, they fall outside this definition. This means:

• Non-solicitation clauses are not subject to the income threshold ($120,559.99 for employees in 2024)
• The 18-month presumptive maximum does not apply
• Employers do not need to provide the statutory consideration (garden leave or independent consideration) required for non-competes

Common Law Standards Apply

Washington courts evaluate non-solicitation clauses under common law, considering:

• Legitimate business interest: Customer goodwill, trade secrets, or confidential information
• Reasonable scope: Limited to customers the employee actually served or had meaningful contact with
• Reasonable duration: One to two years is typically upheld
• Not unnecessarily burdensome: The clause should not effectively prevent the employee from working in their profession
• Consideration: Employment is generally sufficient for agreements signed at hire

Cautionary Notes

While the exemption benefits employers, Washington courts still scrutinize non-solicitation clauses:

• A clause that effectively prevents all competition will be treated as a non-compete subject to RCW 49.62
• Washington's partial enforcement doctrine allows courts to modify overbroad provisions
• The trend toward employee protections means courts may apply heightened scrutiny

Red Flags

• A non-solicitation clause broad enough to function as a non-compete
• Restrictions covering all company customers regardless of your involvement
• Duration exceeding two years
• No clear definition of solicitation
• Clauses imposed on lower-income employees who would be protected under the non-compete statute

When to Consult a Lawyer

Consider speaking with a Washington employment attorney if your clause seems broad enough to be reclassified as a non-compete, if you are unsure whether the statutory exemption applies, or if a former employer is pursuing enforcement.

This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.