Bobadilla v. New Agreements for Old Employees
Can you ask your current Washington State employee to sign a non-solicitation agreement? Do you need to pay them? What can the agreement even say? Is it worth all of the time and big feelings?
Yes, you can ask a current employee in Washington to sign a non-solicitation agreement after they've already been hired. But it only works if you provide ‘independent consideration’ at the time of signing. Continued employment alone won’t be enough under Washington law, it never has been.
With the non-compete ban around the corner, a lot of Washington employers are realizing they need to replace their restrictive covenant strategy with something that will still be enforceable after the effective date. Confidentiality and non-solicitation agreements are the answer for most of them. Updating for new employees and covered relationships is somewhat straightforward, but then the question becomes, ‘what about my current people’? Do existing employees need to sign something new, and if so, what does it take to make that new agreement stick?
What's the difference between a non-compete and a non-solicitation agreement in Washington?
After June 30, 2027, non-competition covenants (think ‘legal promises’) are effectively banned for Washington-based employees and independent contractors. Under HB 1155 (the law at issue here), a non-solicitation agreement is a different category of promise, defined as an agreement that prohibits an employee, upon termination of employment, from doing one of two things:
• Soliciting current employees of the employer to leave.
• Soliciting current customers of the employer to cease or reduce their business with the employer.
Both types are still allowed under HB 1155. The customer non-solicitation piece carries a new limit: it cannot exceed 18 months after the end of employment. But employee non-solicitation, which prevents the promisor from poaching your team, doesn’t have a legally-set time limit under the new law.
The big difference? A provision that prohibits an employee from accepting business from a former customer, even if the employee didn't solicit it, is treated as a prohibited non-compete, not a non-solicitation agreement.
In the simplest terms, in Washington you can prohibit a departing employee from going after your clients, but you can't prohibit them from serving a client who comes to them on their own.
The Non-solicitation agreement, can you ask a current employee to sign one after they've already been hired?
Yes, but there's a catch that employers need to understand before they get too excited about an ‘easy’ solution.
Washington law requires independent consideration for any restrictive covenant entered into after employment has already begun. This requirement existed under the 2020 law and isn’t going anywhere with the new law. The rule is clear and specific: if the covenant is entered into after employment has already started, it is unenforceable unless the employer provides independent consideration for the covenant.
What counts as independent consideration? It’s real value beyond continued employment. A payment, a raise, a bonus, additional benefits, a promotion, or a meaningful change in job responsibilities can all qualify. The common employer mistake is handing an existing employee a new agreement and telling them they need to sign it to keep their job.
What happens if you skip the consideration step?
The agreement is unenforceable, even if the person signed it. A little louder for those in the back: a signature on an unenforceable agreement doesn't make it enforceable.
So what should the Non-solicitication agreement say?
Under Washington’s new law, non-solicitation agreements must be narrowly construed (literally and given the smallest possible scope). The says that outright, so you're not going to be drafting to the edge of what you can prohibit. You're drafting to describe specifically what you're protecting and why.
A compliant customer non-solicitation agreement for a Washington State employer should:
• Identify the scope of prohibited solicitation clearly: active solicitation of current customers, not past customers, not prospective customers.
• Not prohibit the acceptance of business from a former customer who contacts the employee without solicitation.
• Be limited to 18 months post-employment.
• Identify the consideration provided at signing.
A compliant employee non-solicitation agreement should:
• Prohibit solicitation of current employees to leave the employer.
• Not extend to former employees or to employees the departing employee never worked with.
• Be clear about what solicitation means and what it doesn't.
Both types should be standalone documents or very clearly delineated sections of a larger employment agreement, definitely not buried in boilerplate where nobody reads them carefully. An agreement the employee can read and understand is both more likely to be followed and more likely to hold up if you end up really needing it.
What about employees who already have a non-solicitation agreement?
If the existing agreement was signed before or at the time of hire with adequate consideration, it may already be enforceable, subject to the new scope restrictions. Pull the agreement and check two things: when was it signed relative to the start of employment? does it describes the now-narrower permissible scope?
An old non-solicitation that prohibits solicitation of past or prospective customers, or that doesn't have a time limit on customer non-solicitation, should be updated. A clean, current agreement is easier to enforce, and easier to explain to an employee who asks what they agreed to.
Non-solicitation agreements are a legitimate and important tool for Washington State employers after the non-compete ban takes effect. The process for getting them signed with current employees isn’t complicated and is worth the effort. It requires real consideration, a compliant scope, and clear drafting. Getting the consideration step right is the one thing most employers skip, and it's the thing that determines whether the agreement is worth the paper it's printed on.
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