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Game night should be fun. Game night should be fun. Game night should be fun. This is the refrain I hear from my wife as we drive to our friend鈥檚 house to play the board game Ticket to Ride. It turns out my desire to recklessly block others鈥� routes is frowned upon within my 鈥渇riend group.鈥� Yet for the last few years I have acquiesced to this request and chalked up the 鈥済ame night鈥� as really a night to just be around friends and eat their delicious BBQ. That is, until last week, when out of the blue their pre-teen blocked my final route ticket preventing me from achieving victory. Such whiplash is what many employers felt in Washington earlier this year when its supreme court issued a new rule tied to anti-moonlighting provisions. Outlined below is a look at the background of Washington鈥檚 limited restrictive covenants, an analysis of new Washington case law, and recommendations.

Background and new law

Washington has severely restricted non-competition agreements since 2020, when a new state law took effect. This law includes rules on anti-moonlighting policies and provisions:

No moonlighting restrictions are allowed for low-wage workers unless an exception applies. In addition to regulating post-employment non-competes, the statute (RCW 49.62) prohibits employers from restricting low-wage employees 鈥� defined as those making less than twice the minimum hourly wage (which, as of 2025, is $33.32 per hour or $69,305 per year) 鈥� from 鈥渉aving an additional job, supplementing their income by working for another employer, working as an independent contractor, or being self-employed.鈥� However, as in nearly all things in the legal world, there are exceptions. The statute preserves employees鈥� common law duty of loyalty to their employers (requiring employees to act in their employers鈥� best interest and avoid conflicts of interest).

The holding limits duty of loyalty for low-wage workers. Prior to the recent Washington Supreme Court ruling, employers still included anti-moonlighting and other duty of loyalty provisions in their policies and agreements to limit competition during employment due to the aforementioned exception. But as in all things employment law (and Ticket to Ride), that recently changed due to the case.

In that case, two former employees sued Freedom Vans on behalf of a class of employees subject to in-term non-compete agreements. These agreements prohibited them from 鈥渄irectly or indirectly engaging in any business that competes鈥� with Freedom Vans during their employment. The plaintiffs reportedly refused offers for 鈥渟ide jobs鈥� while employed at Freedom Vans, fearing acceptance could lead to termination or even legal action. The lower courts ruled that Freedom Vans could lawfully bar low-wage employees from providing 鈥渁ny kind of assistance鈥� to competitors, citing the exception for the common law duty of loyalty under .

However, the Washington Supreme Court decisively rejected this stance, asserting that such a broad restriction would contradict the legislature鈥檚 intent to allow low-wage employees to supplement their income and would unreasonably expand their duty of loyalty. The crux of the holding is: anti-moonlighting and duty of loyalty provisions must be narrowly drafted and will be strictly construed when applicable to low-wage employees in Washington. Employers that fail to do so could be penalized at least $5,000 in statutory damages and attorneys鈥� fees to each aggrieved employee.

Recommendations

1. Identify which Washington-based employees make less than $33.32 per hour or $69,305 annually. If there are no such employees, no immediate action is required.
2. If there are low-wage Washington employees, review their employment agreements to determine whether they contain anti-moonlighting, 鈥渘o outside employment,鈥� duty of loyalty, or other in-term non-competition provisions.
3. If there are low-wage Washington employees, and they do not have these provisions in their agreement, review all policies that could contain these provisions (like a company handbook).
4. If your answer to no. 2 or no. 3 was yes, work with outside counsel to formulate a plan for current and future employees to ensure that sufficient, but enforceable, protections are in place going forward.

Much like when playing Ticket to Ride, employers with employees in Washington must carefully strategize to avoid blocking their own paths. The recent Washington Supreme Court ruling reshapes the way anti-moonlighting and duty of loyalty provisions can be enforced for low-wage workers.

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers鈥� interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91视频 guarantees the accuracy or completeness of any information published herein.