By: Christina M. Reger, Esq., Law and Compliance Counselor & Co-Founder

Traditionally restrictive covenant agreements contained the trifecta – #Non-Competition, #Non-Solicitation and #Confidentiality.  As non-compete agreements become more and more disfavored in Pennsylvania and around the country, employers are looking to non-solicit agreements to cast wider nets.  So, while the typical non-solicitation agreement prohibits generally departing employees from soliciting, diverting, or enticing, directly or indirectly, or accepting customers or potential customers of the prior employer, a new decision in Pennsylvania warns against the use of such broad language.

In First National Trust Company v. English, et al., 1109 WDA 2025 (Pa. Super. Feb. 18, 2026), the Pennsylvania Superior Court upheld a lower court’s denial of injunctive relief and refusal to bar three financial advisors from working for their new investment firm.  In examining the contracts, the court found the contracts – particularly the non-solicitation clauses – to be overbroad noting that the language “solicit, divert or entice” required an affirmative act and did not preclude the employees from accepting customers.  With respect to accepting customers, the court warned about clauses that do not carve out long-time customers that came to the employer when the employee was hired, or family or friends of the employee.  It also did not contain any geographic limitations.

The Takeaways:

1. Review your restrictive covenants – do not use a wash, rinse, repeat template for all employees and all situations.
2. Understand what you are trying to protect – which may be different for every employee
3. Draft language that is narrowly tailored to protect the business interests and the investment you have or will make in the employee and the business they generate.
4. Make sure you are providing adequate consideration to the employee signing the agreement.

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