Non-disparagement clauses look innocuous on paper. In practice, they're one of the most consequential parts of an employment or severance agreement — and they've been materially reshaped by the Speak Out Act (2022), the NLRA McLaren Macomb decision (2023), and a wave of state laws from California to New York. If a contract asks you to promise not to say anything negative about your employer — ever — read it carefully before signing. The enforceable scope is often much narrower than it looks.
What is a Non-Disparagement Clause?
A non-disparagement clause is a contractual promise not to make negative statements about a party — typically an employer — its products, services, or personnel. Non-disparagement clauses appear in offer letters, employment agreements, severance and separation agreements, and settlement agreements. Federal and state law now significantly constrain what can be promised and enforced: the Speak Out Act (2022) voids pre-dispute clauses related to sexual assault and harassment, the NLRB's McLaren Macomb (2023) restricts non-disparagement in severance agreements for non-supervisory employees, and state laws (e.g. California CCP § 1001, New York GOL § 5-336, Washington 'Silenced No More Act') further limit scope.
Red flags to watch for
Watch for asymmetry: the employee agrees broadly, but the employer's promise is limited to 'officers and directors' or 'official statements'. Real mutuality protects you from reviews and references.
The federal Speak Out Act (H.R. 4445) voids pre-dispute non-disparagement and NDAs that cover sexual assault or harassment. Clauses purporting to cover these are unenforceable.
Under McLaren Macomb (NLRB 2023), overly broad non-disparagement in severance agreements for non-supervisory employees can be an unfair labor practice — the whole clause may be unenforceable.
SEC and Dodd-Frank whistleblower protections cannot be waived. Any clause purporting to prevent truthful reporting to government agencies is unenforceable.
Clauses setting a fixed $-amount penalty for any breach can be unenforceable as a penalty rather than a genuine liquidated damages estimate.
Perpetual non-disparagement is aggressive. Most courts expect a reasonable time limit tied to the purpose of the protection.
Increasingly, courts treat blanket bans on truthful reviews as overbroad and unenforceable — and several state laws directly prohibit them.
Your legal rights
US employees and ex-employees are protected under: the Speak Out Act (Pub. L. 117-224, 2022) voiding pre-dispute NDAs and non-disparagement for sexual assault/harassment claims; the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (2022); Section 7 of the NLRA for concerted activity protections (McLaren Macomb Inc., 372 NLRB No. 58); SEC Rule 21F-17 on whistleblower anti-retaliation; the False Claims Act (31 U.S.C. § 3730(h)); OSHA whistleblower protections; and state laws including California CCP § 1001 and Gov. Code § 12964.5, New York GOL §§ 5-336 and CPLR § 5003-b, Illinois 'Workplace Transparency Act', Washington 'Silenced No More Act', New Jersey P.L. 2019 ch. 39, and others.
Questions to ask before you sign
- 1Is the clause mutual — and does the employer's obligation cover all employees and agents, not just officers?
- 2Are there carveouts for truthful testimony, whistleblower reports, and government investigations?
- 3If this is severance, have McLaren Macomb limits been considered for non-supervisory roles?
- 4Is there a carveout for discussion of sexual assault or harassment claims (Speak Out Act compliance)?
- 5What is the duration of the clause, and is it proportionate?
- 6What are the consequences of breach, and is the penalty realistic?
- 7Can I still give honest professional references or speak candidly to future employers?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.