Question: We know there have been many changes in Washington law lately about non-compete restrictions, but are we still allowed to prohibit current employees from moonlighting?
Answer: Under certain conditions, yes. Washington law allows employers to restrict current employees from “moonlighting” (i.e., working other jobs at the same time) if the employee is making at least twice the state minimum hourly wage. The minimum wage in 2023 is $15.74 per hour, meaning employees must make at least $31.48 per hour (or approximately $65,478 annually) to be lawfully restricted from working other jobs. However, there are two exceptions to this law which allow you to prohibit moonlighting by employees who make less:
- You can prohibit any employee from moonlighting if the other job would raise safety issues for the employee, other employees, or the public (e.g., being sleep deprived because the employee’s second job is on night shift), or if the other job would interfere with your reasonable scheduling expectations; or
- You can prohibit any employee from moonlighting if the other job would violate an existing legal obligation the employee already has to you, such as their duty of loyalty or avoiding conflicts of interest. For example, Washington law imposes a duty of loyalty on employees that would be violated by any work or actions directly competing with their employer’s business.
In an unpublished opinion (meaning future courts aren’t bound by this), a Washington appellate court recently confirmed the exception for prohibiting jobs that would violate an employee’s existing legal obligations and allowing employer policies necessary to secure those legal obligations. Two workers employed to convert and customize vehicles brought a claim against their employer over a requirement in their employment agreement not to “directly or indirectly engage in any business that competes with the employer” or work for any competing business. The workers claimed that this restriction violated the Washington moonlighting law by preventing them from performing side work repairing and converting vehicles for various individuals. The court sided with the company because the restrictions fell squarely within the exception to the moonlighting law for existing legal obligations the workers already owed to the company. Specifically, the workers already had a duty of loyalty under Washington law that prevented them from taking other jobs that compete with the company’s business. (David v. Freedom Vans, LLC, Wash App, Oct. 2023).
We recommend reviewing any current moonlighting restrictions to make sure they are consistent with the reasons permitted by Washington law, such as safety, scheduling, and an employee’s legal duties. For more information, talk with your Vigilant Law Group employment attorney and see our related Legal Guide, Noncompetition Agreements.
