Non-Disparagement Clauses in Pennsylvania: Enforceability
Pennsylvania generally enforces non-disparagement clauses under traditional contract law principles, though recent developments have added employee protections in certain situations.
Pennsylvania's Legal Framework
Pennsylvania does not have a comprehensive statute specifically governing non-disparagement clauses like some other states. Enforceability is primarily determined under common law contract principles. Courts look at whether the clause is part of a valid agreement, supported by consideration, and reasonable in scope.
However, Pennsylvania courts have shown willingness to scrutinize overbroad restrictive covenants. The state's approach to non-compete agreements under cases like Hess v. Gebhard & Co. (808 A.2d 912) and the reasonableness analysis applied there can influence how courts evaluate related restrictions like non-disparagement clauses.
What Pennsylvania Courts Consider
- Adequate consideration: In the employment context, Pennsylvania courts require that restrictive covenants entered after employment begins must be supported by new consideration beyond continued employment. This analysis may extend to non-disparagement provisions.
- Scope and duration: Indefinite or unreasonably broad clauses are more likely to be modified or struck down. Courts favor clauses with defined parameters.
- Legitimate business interest: The clause should protect a genuine interest, such as goodwill or reputation, rather than simply silencing a former employee or business partner.
- Public policy: Clauses that prevent reporting to government agencies or participating in legal proceedings face strong public policy challenges.
Red Flags
- Non-disparagement clauses added to existing employment without new consideration
- No carve-out for truthful statements to government agencies or in legal proceedings
- Indefinite duration with no limitation
- Overly vague definition of what constitutes "disparagement"
When to Consult a Lawyer
If you are reviewing a severance agreement or employment contract in Pennsylvania with a non-disparagement clause, consider consulting a Pennsylvania employment attorney who can assess the clause against current case law and advise on negotiation.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.