It’s Time to Get Back To Basics:
With fewer than two months before the completion of the first year of Donald Trump’s presidency, and in an age of uncertainty caused by the issuance of multiple executive orders, which purport to roll back programs at the federal level, including Diversity, Equity, and Inclusion measures, it is important that employers step back, take a breath, and ensure that, as they have contemplated or made changes resulting from the direction of the federal government, they continue to comply with the laws of the State of Washington. Failure to ensure compliance with Washington law can result in significant exposure, both financially and reputationally.
Key Changes and Takeaways for Employers – Four Topics:
1) Non-Competes:
Although the previous presidential administration sought to tamp down the ability of employers to use and/or enforce non-competition agreements, the current administration has demonstrated greater receptiveness to the enforcement of non-compete agreements. However, that has not changed the fact that the State of Washington continues to have strict rules relating to the enforcement of non-competition agreements for Washington employers. In January 2025, the Washington State Supreme Court interpreted the language of RCW 49.62.070(1), which prohibits enforcement of non-competition agreements against employees who do not earn at least twice the applicable state minimum wage. This provision of the law applies regardless of whether the employee is working for another employer, is an independent contractor, or is self-employed. (See Springer v. Freedom Vans, No. 102566-1 (January 23, 2025).) In the Springer decision, the court made it clear that the Washington State Legislature intended to protect low-wage workers and declined to adopt an expansive view of the duty of loyalty to an employer as a reason to enforce non-competition agreements against lower-waged employees.
In addition to the prohibition on enforcement of non-competition agreements against low-wage employees, Washington law also has relatively high thresholds for enforcement of non-competition agreements for other categories of employees as well as independent contractors. Currently, in order to enforce a non-competition agreement against a Washington-based employee, the employee must earn more than $123,394.17, while an independent contractor must earn more than $308,485.43. This is true regardless of the position taken by the federal government on the enforceability of non-compete agreements. Failure to adhere to Washington law exposes Washington-based employers to significant liability.
2) Diversity, Equity, and Inclusion Programs:
A second focus of the current administration has been efforts to eliminate Diversity, Equity, and Inclusion programs within the federal government. Although it is difficult to fully assess the impact of the elimination of such programs, it is clear that many employers that have eliminated their diversity programs have seen negative impacts, including significant decreases in the hiring of women and men of color, as well as decreases in the hiring of LGBTQ candidates. Businesses have also seen declining morale and increases in incidents of workplace discrimination. (See The Impact on Organizations Post Trump’s DEI Executive Order, Karen Dennison, SPHR, CPRW, E.C., Forbes Magazine, August 11, 2025.)
Prudence dictates that employers must be vigilant in their adoption of and reaction to federally directed mandates because adopting the positions espoused at the federal level could result in an employer running afoul of the mandates of the Washington State Legislature as embodied in the Washington Law Against Discrimination (RCW 49.60 et seq.).
Washington State has a strong history of inclusion of many different cultures, adopting its first anti-discrimination laws in 1949, more than fifteen (15) years before any such federal legislation was enacted, stating unequivocally that the law was adopted to “prevent and eliminate discrimination in employment against persons because of race, creed, color or national origin; creating in the executive department a state board against discrimination; defining its functions, powers and duties and providing for the appointment and compensation of its officers.”
Washington’s law against employment discrimination is not a directive to provide preferential treatment to applicants based on a protected status; instead, it is a mandate for employers to refrain from excluding individuals who are otherwise qualified from consideration for and receipt of jobs based on their protected status. Washington employers who fail to adhere to this law, thinking that the trend in federal law has granted permission, are well advised to stop, think, and seek advice to avoid the potential of significant financial exposure.
3) Gender Identity:
The January 31, 2025, Executive Order (EO 14168) on gender identity, which stated that the federal government will only recognize two genders, male and female, is neither a directive to nor permission for Washington employers to run afoul of current Washington State and current federal law. In Bostock v. Clayton County, 590 U.S. 644 (2020), Justice Neil Gorsuch affirmed that employment discrimination on the basis of gender identity is prohibited by the federal non-discrimination laws. Similarly, Washington State law prohibits employment discrimination on the basis of gender identity. Washington State also prohibits discrimination in housing, public accommodations, and lending on the basis of gender identity.
Unlike the position taken by the U.S. Supreme Court in United States v. Skrmetti, 145 S. Ct. 1816, 605 U.S. 495 (June 2025), the case in which the Court determined that gender-affirming care for minors can be prohibited by states, health plans offered by employers in Washington State cannot rely on either the Supreme Court decision or the executive order to deny such coverage because RCW 74.09.675 requires that medically necessary gender-affirming care cannot be excluded from coverage or denied health care coverage based on gender identity. Washington laws related to gender-affirming care also prohibit differential treatment of other categories of individuals, including renters, customers, and others. As is true with other laws addressed in this article, liability can attach for failure to adhere to Washington’s laws in reliance on Executive Order 14168.
4) The Right to Free Speech:
Finally, as we approach the Thanksgiving holiday, it is important that employers take stock of the freedoms that have been afforded by the federal and state constitutions and laws with respect to the ability of employees and employers alike to speak their minds. Public-sector employers should not be lulled into the belief that, because of recent actions taken at the federal level, the principles of free speech have somehow been changed or eliminated. Public-sector employees still have the constitutional right to freely address issues of public concern and should continue to be able to do so without fear of retribution. However, as a general rule, private-sector employees are more restricted in what they can and cannot say or what they can or cannot do in terms of other types of speech, such as hanging posters or advocating particular positions that may be at odds with the beliefs of others, including the entity or individuals that employ them. But even private-sector employers must continue to be cognizant of the right of their employees to speak openly with others about the terms and conditions of their employment. Employers must remember that, while they have the ability to insist on civility in the workplace, they may be running afoul of the law if they choose to stifle discussion about the terms and conditions of employment.
If you follow the law and the trends, you will be thankful overall because it is far more likely that you can avoid the experience of litigation and liability.
Our Labor & Employment team is available to assist with auditing existing policies, revising handbooks, and ensuring compliance with Washington State requirements.
If you have any questions or would like to discuss how these developments impact your organization, please don’t hesitate to contact us.
Stay tuned for information on our upcoming Labor & Employment seminar this spring! We will share details as soon as they are available.