Background:

Washington disfavors restraints on trade. However, restraints are permitted in some circumstances. A noncompetition agreement, one type of restraint, is an agreement between parties where one party promises not to compete with the other party for a specific period of time, and sometimes within a specified geographic area. Statutory law addresses noncompetition agreements only in the broadcasting industry.

Under the common law, Washington courts will enforce a noncompetition agreement if the agreement is reasonable. Whether an agreement is reasonable involves consideration of three factors:

1. whether the restraint is necessary for the protection of the business or goodwill of

the employer;

2. whether the restraint imposes on the employee any greater restraint than is

reasonably necessary to secure the employer's business or goodwill; and

3. whether the degree of injury to the public is such loss of the service and skill of the

employee as to warrant non-enforcement of the agreement.

In general, if a noncompetition agreement is agreed to after an employee is hired, the agreement is enforceable only if the employer gives the employee independent consideration, such as a raise or a promotion.

In evaluating the reasonableness of an agreement, the courts examine the time and geographic scope of the restraint. If a court finds that an agreement is unreasonable, the court may reform the terms of the agreement.

Summary of Bill:

An unreasonable noncompetion agreement is void and unenforceable. A court may reform an agreement to make it reasonable; however, the party seeking to declare the agreement void is deemed the prevailing party for purposes of the contract and under law. For an agreement to be enforceable, the employer must disclose the terms in writing to a prospective employee no later than the offer of employment or must provide independent consideration.

Noncompetition agreements between employers and employees are unreasonable and void and unenforceable if the employee is:

a temporary or seasonal employee; or
terminated without just cause or laid off.

An employer who requires an employee to enter into a noncompetition agreement with provisions the employer knows or reasonably should know are unenforceable is liable for actual damages, $5,000 statutory damages, and reasonable attorneys' fees.

Noncompetition agreements with independent contractors are also void and unenforceable. For other specified types of agreements, a rebuttable presumption is established that the agreement is unreasonable. These are agreements:

that restrict competition for more than one year after termination of employment; or
for employees who are not executives.

The provisions do not restrict the right of an employer or entity engaging an independent contractor to enter a confidentiality or non-solicitation agreement, or other terms and conditions of employment. Further, the reformation or unenforceability of a noncompetition agreement does not affect the enforceability of a confidentiality, nonsolicitation, or other agreement, or other terms and conditions, regardless of whether the other agreement or terms and conditions are in the same document as the noncompetition agreement.

A "noncompetition agreement" is an agreement between an employer and an employee, or between a hiring entity and an independent contractor, that is specifically designed to impede the ability of the employee or independent contractor, respectively, to compete with the employer or hiring entity upon termination of the relationship.

An "executive employee" is an employee:

whose primary duty is managing the enterprise or a department or subdivision;
who customarily and regularly directs the work of two or more employees, and who has hiring and firing authority, or whose suggestions are given particular weight;
who customarily and regularly exercises discretionary powers; and
who does not devote more than certain specified amounts of time to activities which are not directly related to executive work.

Definitions are also provided for "employee," "employer," "confidentiality agreement," and "non-solicitation agreement."

The provisions apply to agreements entered into on or after the effective date.