Non-Disparagement Clauses Explained: What They Restrict and Where the Law Draws the Line

A non-disparagement clause restricts what you can say publicly about your employer, usually barring statements that damage the company's reputation, business relationships, or goodwill. It shows up in offer letters as a standing condition of employment and in severance agreements as a condition of your payout, and the two versions are enforced differently. Courts generally uphold these clauses, but a 2023 federal labor ruling and a handful of state laws now block employers from writing them as broadly as they used to.

What Is a Non-Disparagement Clause?

A non-disparagement clause is a contract provision that prohibits you from making negative, critical, or damaging statements about your employer, its products, or its people, whether to the press, on social media, or to former coworkers. It's distinct from confidentiality, which covers what you can disclose, and from non-solicitation, which covers who you can recruit or approach after you leave.

What the Clause Typically Restricts

Most clauses cover public statements: reviews on Glassdoor or LinkedIn, comments to journalists, and social media posts. Well-drafted versions carve out truthful statements made in legal proceedings, regulatory filings, or responses to a subpoena. Poorly drafted versions don't, which is exactly the language regulators have started pushing back on.

Where It Shows Up: Offer Letter vs. Severance Agreement

At hire, it's usually a short clause bundled into the "General Terms" section of an offer letter, covering the length of your employment and often surviving after it ends. At exit, it reappears inside a severance or separation agreement as a condition attached to your payout, and it's this second version that has drawn the most legal scrutiny.

Non-Disparagement vs. Confidentiality vs. Non-Solicitation

These three clauses are often grouped together under "restrictive covenants," but they restrict different things. Confidentiality covers information; non-solicitation covers people; non-disparagement covers what you say about the company itself. Our non-solicitation agreement guide and non-compete guide cover the other two in the same family of clauses.

Is a Non-Disparagement Clause Enforceable?

Yes, non-disparagement clauses are generally enforceable as ordinary contract terms, but enforceability narrows sharply when the clause is written broadly enough to block you from reporting illegal conduct, cooperating with a government investigation, or exercising rights protected by federal labor law. A clause that only stops petty or false statements tends to survive a legal challenge; one that tries to silence you on discrimination, harassment, or wage violations increasingly does not.

Courts Generally Enforce Them, With Limits

A signed clause backed by real consideration, your job, a severance payment, a settlement, is treated like any other contract term. The limits come from public policy carve-outs: you generally cannot be bound to stay silent about unlawful conduct, and a clause that tries anyway risks being struck down or rewritten by a court, even if the rest of the agreement stands.

The Language Matters More Than the Existence of the Clause

Two offer letters can both contain "a non-disparagement clause" and mean different things. A narrow version, barring knowingly false statements made in bad faith, is common and rarely controversial. A version with no carve-out for legal proceedings or regulatory complaints is the one worth flagging before you sign.

The 2023 NLRB Ruling That Changed Severance Agreements

In McLaren Macomb (372 NLRB No. 580, decided February 21, 2023), the National Labor Relations Board held that merely offering a severance agreement with an overly broad confidentiality or non-disparagement clause can itself violate the National Labor Relations Act, regardless of whether the employee signs it, according to reporting from Holland & Knight. The Board found the clause unlawful because it was written broadly enough to stop a departing employee from helping coworkers raise complaints with each other, a union, the NLRB, or the media.

What the Ruling Actually Covers

McLaren Macomb applies to severance agreements, not to every non-disparagement clause in every offer letter. The NLRB's General Counsel followed up with guidance (GC Memo 23-05, issued March 22, 2023) directing regional offices to read the decision broadly against employers, per coverage from Littler. The practical effect: a severance agreement that asks you to waive your Section 7 rights in exchange for broadly worded non-disparagement or confidentiality language is legally exposed, even after you've signed and cashed the check.

The Rule's Status Is Still Contested in 2026

This is not settled ground. McLaren Macomb remains subject to appellate review, and coverage from Venable notes that a Republican-majority NLRB may revisit or narrow it. Treat the ruling as the current baseline, not a permanent fixture, and don't assume a severance agreement signed today will be judged under the same standard in a few years.

Federal and State Limits You Should Also Know

Beyond the NLRB, two other legal developments narrow how far this clause can reach outside the labor-relations context.

The Speak Out Act (Sexual Harassment and Assault Claims)

The federal Speak Out Act, signed into law December 7, 2022, makes pre-dispute non-disparagement and non-disclosure clauses judicially unenforceable for claims involving sexual harassment or sexual assault, per summaries from Mintz and Sullivan & Cromwell. It only reaches clauses signed before a dispute arises; a non-disparagement clause in a settlement agreement signed after a harassment claim is made isn't affected.

California's Silenced No More Act

California's SB 331, in effect since January 1, 2022, requires that any non-disparagement clause in a separation agreement include specific carve-out language stating that it doesn't restrict discussing unlawful acts like harassment, discrimination, or retaliation, according to Akin Gump's summary. It expanded an earlier, narrower rule that only covered sexual harassment claims, and several other states have since adopted similar carve-out requirements.

Why This Varies by State and Situation

None of this adds up to one national rule. Enforceability depends on the jurisdiction, whether the clause is tied to a severance payment or an active employment offer, and what conduct it tries to reach. This is general information, not legal advice for your specific document, and a local employment attorney can tell you how an aggressive-looking clause would actually hold up where you live.

What to Do Before You Sign

You don't need a law degree to spot the version of this clause worth asking about. A few checks catch most of the risk.

Read the Full Scope, Not Just the Heading

Look for whether the clause carves out truthful statements in legal proceedings, regulatory complaints, and, in California or a similar state, discussions of workplace discrimination or harassment. A one-line clause with no exceptions listed is the version most likely to be unenforceable as written, and also the version most likely to make you hesitate before saying anything at all.

Check Whether It's Mutual

Some clauses bind only you; others bind the company too. A one-directional clause isn't automatically unfair, but it's worth noticing, especially if you're negotiating severance terms where the company is asking for your silence in exchange for money it's already decided to pay.

Ask What You're Trading It For

In a severance agreement, a non-disparagement clause is usually one term inside a larger negotiation that includes your payout amount and timeline. Offer XRay flags overly broad restrictive clauses like this one automatically when you upload an offer or separation document, so you're not trying to parse the legal language cold. For the compensation side of that same negotiation, our severance package guide and job offer red flags checklist cover what else to check before you sign.

Frequently Asked Questions

Can I still leave a negative company review if I signed a non-disparagement clause?

It depends on the exact wording and what you'd say. A narrow clause generally still allows factual, non-malicious statements, while a broad one may attempt to bar even honest criticism. Discussing unlawful conduct, like harassment or wage violations, is protected in many circumstances regardless of the clause's wording, but read your specific agreement rather than assuming either extreme.

Does a non-disparagement clause stop me from talking to the government or a lawyer?

No. It generally cannot lawfully block you from filing a charge with a government agency, cooperating with an investigation, or consulting an attorney, and a clause that tries usually isn't enforceable on that point even if the rest of the agreement is valid.

Is a non-disparagement clause the same as an NDA?

No. A non-disclosure agreement (NDA) restricts what confidential information you can share; a non-disparagement clause restricts your opinions and characterizations of the company, regardless of whether the underlying facts are confidential. Offer letters and severance agreements frequently include both, as separate provisions.

What happens if I violate a non-disparagement clause?

Consequences vary by what the agreement specifies, commonly the right to sue for breach of contract or, in a severance agreement, a clawback of the severance payment. Read the enforcement mechanism in your own agreement rather than assuming a fixed penalty, since it's rarely standardized across companies.

Key Takeaways

• A non-disparagement clause restricts what you can say about your employer; it's a different restriction from confidentiality (information) or non-solicitation (people).
• Courts generally enforce these clauses, but broad versions that block reporting unlawful conduct are increasingly unenforceable.
• The NLRB's 2023 McLaren Macomb decision restricts overly broad non-disparagement language in severance agreements specifically, though the ruling's long-term status is still contested.
• Federal and state laws, including the Speak Out Act and California's Silenced No More Act, add further limits depending on the claim type and where you're employed.
• Read the exact scope and carve-outs before signing, and treat this as general information rather than a substitute for advice from an employment attorney in your state.

A non-disparagement clause is easy to skim past because it rarely comes with a dollar figure attached, but it can shape what you're able to say for years after you leave. Read the exact wording, check for the carve-outs that current law requires, and ask before you sign if anything looks broader than it needs to be.