By now, who has not heard the name Stormy Daniels? Yes, the adult film star who will forever be linked to President Donald J. Trump. With so much news regarding nondisclosure agreements (NDAs), it got this writer to thinking about the enforceability of NDAs in our state.  Feared by many and abused by all, NDAs are a powerful tool in shutting the mouths of the people you don’t want speaking publicly. NDAs, however, are not just limited to adult film stars and presidents of the United States. In the employment law world we see them all the time.  Confidentiality clauses have become more routine in the settlement of disputed employment claims. Often, the employer will include a claw back provision or liquidated damage clause in the event of a breach by the employee. It is not unusual to even see nondisclosure clauses coupled with restrictive covenants in employment agreements at the commencement of the employment relationship, as well.

If ever there were a reason to suppress the murmurs of the peonage, surely it would come in the form of an iron clad restrictive covenant. Courts, however, have disfavored restrictive covenants for centuries. To quote from one of the leading cases on the disfavor of restrictive covenants, “as early as the fifteenth century, pursuant to English common law, restrictive covenants in the employment arena were per se void and unenforceable,” see Hess v. Gebhard & Compamy, 808 A. 2d 912, 917 (Pa. 2002) (citing Morgan’s Home Equipment v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957) (reviewing Dyer’s Case, Y.B. Mich. 2 Henry 5, f. 5, pl. 26 (C.P.1414).