Page 27 - Pierce County Lawyer - September October 2025

in direct competition with the
employer’s business, as prohibited
by Kieburtz and its progeny) from
permissible indirect competitive
acts (i.e., employee acts that do not
explicitly target the business and its
customers or undermine operations).
Id., at 357-59. For Justice Lewis, on
the other hand, it is only permissible
for employers to prohibit low wage
employees from directly soliciting
the employer’s customers for a
competitor’s business.
Practice Insights:
• In Washington state,
noncompete agreements are
presumptively invalid for low
wage workers, and only narrow
exceptions apply. Prohibiting
low wage employees from
providing any kind of
assistance to competitors
violates Washington state law.
• Employers may impose
reasonable restrictions on
low wage employees in a
noncompete agreement
consistent with the
requirement that the duty
of loyalty is to be narrowly
construed. Courts will
determine the reasonableness
of any such restriction on a
case-by-case basis, and may
consider factors such as:
→ The need to protect the
employer’s business or
goodwill;
→Whether the restraint on
the employee is reasonably
necessary; and
→Whether enforcing the
agreement violates public
policy.
• When interpreting a statutory
provision with little or no case
law guidance, make sure that
your analysis considers the
Legislature’s stated intent in
enacting the statute.
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Richard B. Lumley is an associate attorney with
Smith Alling, P.S. in Tacoma. His practice primarily
focuses on helping businesses and individuals
resolve commercial, trust and estate, real estate, and
employment disputes. He has experience in state
and federal courts, as well as alternative dispute
resolution venues. He has been an attorney since
2016, practicing in Massachusetts and Rhode Island
before moving to Washington State in 2022.
Proven results for
nearly 40 years.
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