Non-disparagement clauses: can they really stop you saying anything bad?

The clause is broader than defamation law, and that is the point

The standard term is short and very wide: a promise not to make any statement, spoken or written, that a reasonable person would read as critical of the company, its officers, its products or its practices. Most add "directly or indirectly", reaching things said through someone else. Almost none define disparagement — an undefined term is a wider term.

Compare what defamation law prohibits. A claim needs a false statement of fact, communicated to someone else, with the required fault, causing harm to reputation. Truth is a complete defence, because falsity is an element the claimant must prove. Pure opinion is protected because it cannot be shown objectively true or false — though Milkovich v. Lorain Journal Co. refused to make the word "opinion" a shield for a statement implying a provable fact. The clause buys the ground defamation law leaves open.

Why a blanket ban can be unlawful to offer at all

Section 7 of the National Labor Relations Act gives employees the right to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection". Section 8(a)(1) makes it an unfair labour practice to "interfere with, restrain, or coerce employees in the exercise of" those rights. Neither section is limited to unionised workplaces, which is the detail most people miss.

In McLaren Macomb, 372 NLRB No. 58 (21 February 2023), the Board held that a severance agreement conditioning payment on broad confidentiality and non-disparagement terms unlawfully interferes with those rights — and that the violation is complete when the agreement is proffered. The employee need not sign it. Nobody need be disciplined under it. Offering is the act.

The reasoning is about scope, not subject matter. A term forbidding any negative statement, with no time limit and no carve-out, covers on its face telling a former colleague the shift rota is unsafe. That the clause also has lawful uses does not save it; what matters is whether the wording would tend to deter the protected one.

Section 7 does not cover everyone, and the exclusions are wide

That protection belongs to "employees" as the Act defines them, and 29 U.S.C. § 152(3) carves out more people than readers expect: supervisors, independent contractors, agricultural labourers, domestic workers in a private home, anyone employed by a parent or spouse, and anyone employed by an entity the Act does not treat as an employer — which is how public-sector staff fall out.

The supervisor exclusion catches people, because it turns on authority rather than job title. Section 152(11) defines a supervisor by the power to hire, discipline, discharge, assign or responsibly direct others, where using it takes independent judgement rather than being routine. A team lead who decides who gets written up is a supervisor; one who passes the request upwards probably is not.

If you sit in any of those categories McLaren Macomb does nothing for you, and the clause is tested like any other contract term — for clarity, for consideration, and against your state statute.

One channel stays open whatever the document says

Reporting to a government agency is not a right the parties can trade away.

• The EEOC. An ADEA waiver — the release you sign if you are 40 or over — may not prohibit you from filing a charge, including a challenge to the waiver itself, or from taking part in an investigation.
• The NLRB. Section 8(a)(4) makes it an unfair labour practice to discharge or discriminate against an employee for filing charges or giving testimony under the Act.
• The SEC. Rule 21F-17(a) provides that no person may impede an individual from communicating directly with Commission staff about a possible securities violation, "including enforcing, or threatening to enforce, a confidentiality agreement".

What survives is the right to report and take part. Whether you keep money an agency later recovers for you is a separate question, answered by the release rather than this clause. Silence is not cured by the law overriding it anyway: several states require the carve-out on the page.

Can you still leave a bad review?

Two questions, run together by almost everyone. Is the clause lawful as applied to you? And is this post protected even if the clause were sound?

Section 7 protects concerted activity for mutual aid or protection. A truthful post about pay, scheduling, safety or discrimination, written with or for colleagues, sits near the centre of that. A solo grievance about one manager, touching nothing anyone else shares, sits a long way out — entirely true, and still a plain breach.

The right-hand band is the one no carve-out helps with. A review asserting something provably false about a named person invites a defamation notice, where the remedies beat those for breach. Anonymity is thin cover; a subpoena is routine.

State law does work the NLRA does not

Several states go at non-disparagement head-on, reaching people section 7 never protected, supervisors included.

Settlements are governed separately: California Code Civ. Proc. § 1001 voids terms restricting disclosure of factual information in settlements of sexual assault, harassment or discrimination claims, though the claimant may still shield their identity and the sum. One federal rule applies everywhere: the Speak Out Act, 42 U.S.C. § 19403, makes a nondisparagement or nondisclosure clause agreed before the dispute arose unenforceable in a sexual assault or harassment dispute — the term buried in an onboarding pack, not the one negotiated afterwards.

What to negotiate out of it

This is among the more movable terms in a package, because narrowing it costs the employer nothing they actually wanted.

The same asks belong in a commercial settlement, where the clause is scaffolding around the release — see full and final settlement and the settlement agreement template. The rest of the package is in severance agreement review, and the clause this one is confused with in giving employee references.

What the clause is really for

Enforcement is rarer than the drafting implies, and the reason is arithmetic. Proving one review cost a specific sum is hard, an injunction is slow, and suing over a bad review republishes it to everyone who reads the docket. What the clause reliably does is deter, and deterrence was most of the value.

Which is why the carve-outs matter more than the prohibition. You will not talk them out of wanting the clause. You are making sure the two things you might genuinely need to do — tell a regulator what happened, and answer honestly under oath — sit on the page as permitted, rather than left to a later argument about whether federal law covered you.