Non-Disparagement Clause Explained: Requirements, Enforceability, And What Changed Recently

Quick Answer

A non disparagement clause stops the parties involved from publicly or online criticizing each other or making negative statements. The NLRB's McLaren Macomb ruling clearly restricts such overly broad provisions for frontline workers. The implementation entirely hinges on who signed the agreement, the wording of the document, when the signature was made, and the laws of the state involved.

As a legal analyst, when I first started researching the non disparagement clause, I  found it to be one of the most actively contested areas of employment law in the United States. It is one that has been reshaped by several things recently.

Some of these include:

• a landmark NLRB decision,
• a federal statute born from the #MeToo movement,
• and a significant 2025 policy reversal.

While I expected this clause to be a stable body of law with predictable rules, All of these instances have changed the enforcement landscape again.

If you have been handed a non-disparagement clause to sign – or if you are an employer trying to understand what you can legally require – the rules that applied three years ago may not apply today.

What Is A Non Disparagement Clause?

A non-disparagement clause is a contractual agreement in which one or both parties agree not to make negative, critical, or harmful statements about the other.

In employment contexts, these clauses typically appear in two places: employment agreements at the start of the relationship, and severance or separation agreements when the relationship ends.

The clause covers statements made in any medium – verbal, written, or electronic. Social media posts, LinkedIn comments, media interviews, online reviews, and informal conversations with colleagues can all constitute disparagement if the clause prohibits them.

The scope matters enormously. A narrowly drafted non-disparagement clause that prohibits false and defamatory statements is legally very different from a broadly drafted one that prohibits any negative statement – including truthful ones.

That difference has become the central legal battleground in non disparagement clause enforcement over the past three years.

Disparagement vs. Defamation: The Legal Distinction

These two concepts are frequently confused. Understanding the difference matters practically – because it affects what a clause can legally require and what you can legally be held to.

Defamation involves false statements made with some degree of fault – negligence or actual malice, depending on the context.

A defamation clause says: do not make up false things about us to hurt us. Courts have generally upheld defamation clauses because they track existing tort law without restricting truthful speech.

A non-disparagement clause goes further.

It prohibits negative statements regardless of whether they are true. Defamation prevents someone from spreading known falsities or acting with reckless disregard for the truth, but permits a wide range of negative commentary. Disparagement, by contrast, prohibits negative statements even when they are accurate. [Source: Venable LLP]

This distinction is why non disparagement clauses have attracted so much regulatory scrutiny. When you sign one, you may be agreeing not to tell the truth about what happened to you – not just agreeing not to lie.

Where Non-Disparagement Clauses Appear

A non disparagement clause appears in four primary contexts in employment law.

Employment Agreements:

Signed at the start of employment, these provisions are generally treated as a condition of the job itself. They typically survive the employment relationship and continue to restrict the employee after departure.

Severance Agreements:

Signed when employment ends – whether through termination, layoff, or mutual separation – these clauses condition receipt of severance pay on the employee’s agreement not to disparage the company afterward. This is the context that has attracted the most legal attention.

Settlement Agreements:

When an employment dispute is resolved without litigation, settlement terms typically include non-disparagement provisions covering both parties. These are generally more enforceable than pre-dispute clauses.

Executive Compensation Agreements:

High-level executives frequently negotiate non-disparagement provisions as part of their overall compensation package, including post-employment restrictions that may be more extensive than those applied to rank-and-file employees.

The NLRB McLaren Macomb Decision: What It Changed

The most significant legal development in this clause law in recent years was the NLRB’s 2023 decision in McLaren Macomb.

The NLRB ruled that the proffer of confidentiality and non-disparagement clauses in severance agreements violates Section 8(a)(1) of the National Labor Relations Act if such provisions restrict workers from engaging in protected activity.

Under the NLRA, protected activity includes criticizing employer policies or practices with coworkers and former coworkers, and discussing severance terms, wages, and other terms and conditions of employment.

The decision applies retroactively and to both unionized and non-unionized employees, including former employees. [Source: Mosson Law LLC]

In plain terms: the NLRB ruled that an employer asking a non-supervisory employee to sign a broad non disparagement clause as a condition of receiving severance was itself an unfair labor practice – regardless of whether the employee signed it.

The Board concluded that such language “interfere[s] with, restrain[s], or coerce[s] employees’ exercise of Section 7 rights.” And that the employer’s mere proposal of an agreement that conditioned the receipt of severance benefits on employees’ acceptance of such unlawful provisions violated Section 8(a)(1) of the NLRA. [Source: Hunton]

The decision forced employers and their lawyers to revisit and redraft non-disparagement provisions across the country.

What Changed In 2025: The Enforcement Reversal

Then the enforcement landscape shifted again.

In 2025, Acting General Counsel William Cowen rescinded over 25 guidance memoranda previously issued under the Biden-era NLRB, including guidance on non-disparagement and confidentiality provisions. 

on-compete clauses, confidentiality agreements, and non-disparagement provisions that the prior General Counsel had argued were presumptively unlawful under the NLRA are now in a more permissive enforcement environment. [Source: Fwlaw]

Memorandum GC 23-05 – which provided further guidance on enforceable non-disparagement provisions in the wake of McLaren Macomb – is among the many NLRB memorandums the Trump Administration rescinded. [Source: Nisarlaw]

What this means practically: the McLaren Macomb decision itself remains on the books as binding precedent. The Board has not overruled it. However, the aggressive enforcement posture that accompanied it has been pulled back.

Employers operating in 2026 face a more permissive enforcement environment than existed in 2023 and 2024 – but the underlying legal risk created by McLaren Macomb has not disappeared.

Who Is Covered – And Who Is Not

One of the most practically important distinctions in non disparagement clause law is the difference between supervisory and non-supervisory employees.

The McLaren Macomb decision explicitly limits its holding to rank-and-file employees. Non-disparagement provisions may be enforceable for supervisors and managers who are not covered by the NLRA’s protections.

Executives and high-level managers often remain subject to more restrictive provisions as part of their separation packages. [Source: Gibson Dunn]

This means that the same clause can be lawful for a Vice President of Sales and unlawful for a customer service representative – even within the same company.

The distinction turns on whether the individual is a “supervisor” under the NLRA’s definition, which looks at whether they have genuine authority to hire, fire, discipline, or direct other employees using independent judgment.

For employers, this requires careful segmentation of severance agreement templates by employee classification. A one-size-fits-all approach carries legal risk.

The Speak Out Act: Non-Disparagement And Sexual Misconduct Claims

The #MeToo movement fundamentally changed the conversation around non disparagement clauses in sexual misconduct cases – and Congress responded with legislation.

On December 7, 2022, President Biden signed the Speak Out Act, which limits the enforceability of pre-dispute non-disclosure and non-disparagement clauses covering sexual assault and sexual harassment disputes.

Under the new law, non-disclosure and non disparagement clauses that are applicable to sexual harassment or sexual assault disputes and contained in an agreement entered into before such a dispute arises are rendered unenforceable. [Source: SixFifty]

The pre-dispute qualifier is critical. The Speak Out Act only applies to agreements entered into “before the dispute arises.” This means that an agreement entered into after a dispute arises – including a settlement or separation agreement – is not affected by the Act.

The Speak Out Act explicitly states that employers can still use non-disclosure agreements and non-disparagement agreements to protect trade secrets and proprietary information. [Source: Avloni Law]

In practical terms: if you signed a non disparagement clause in your employment agreement before any harassment occurred, that clause cannot be enforced to silence you about the harassment.

But if you signed a settlement agreement after making a harassment complaint, the Speak Out Act does not protect you from that agreement’s non-disparagement provisions.

State Laws: Where Protections Go Further

Federal law establishes a floor – but several states have enacted significantly more restrictive protections.

Washington State’s law is one of the most restrictive. It bars confidentiality clauses – both pre-dispute and post-dispute – related to discrimination, harassment, retaliation, or assault, even when an employee requests them.

Signed into law in 2022, Washington’s law also retroactively voids all blanket non-disclosure and non-disparagement clauses entered into as a condition of employment, irrespective of when they were signed.

Washington also imposes hefty fines and actual damages on employers that attempt to enforce illegal non-disclosure provisions, in addition to paying employee attorneys’ fees. [Source: Verrill]

California and New York have both enacted restrictions on these clauses in harassment and discrimination settlements.

Colorado has prohibited non-disparagement and non-disclosure agreements that restrict disclosure of unfair employment practices. The list of states enacting restrictions continues to grow.

For employees and employers alike, state law is not an afterthought. In many cases, it provides more protection – or imposes more restrictions – than federal law does.

What Makes A Non Disparagement Clause Enforceable

Not all non-disparagement clauses are created equal. Several characteristics consistently distinguish enforceable clauses from unenforceable ones.

Narrowly tailored non-disparagement clauses that permit truthful statements and do not interfere with protected communications stand a better chance of enforcement.

Some agreements now specify that non-disparagement does not prevent accurate statements to government agencies or truthful testimony in legal proceedings.

This type of carve-out increases the likelihood that a court would uphold the provision. Time-limited restrictions are more defensible than perpetual ones. [Source: Gibson Dunn]

The following features make a non disparagement clause more likely to be enforceable:

Specific Scope:

The clause should identify what types of statements are prohibited and about whom, rather than sweeping broadly across all possible negative commentary.

Carve-Outs For Protected Activity:

The clause should explicitly state that it does NOT prevent the employee from doing the following things:

• Speaking to government agencies, including the NLRB, EEOC, or SEC.
• Testifying truthfully in legal proceedings.
• Filing claims or complaints with regulatory bodies.
• Discussing wages and working conditions with other employees.

Mutual Application:

A clause that only restricts the employee – but not the employer – is more likely to face legal challenge and creates a more adversarial dynamic.

Time Limitation:

If a limitation is perpetual, it is more difficult to justify it legally than if it is only temporal. A post-employment restriction of two years has more weight in legal terms than a lifetime ban.

Truthful Statement Protection:

A covenant that only forbids false statements is a more reasonable one than one which bans all kinds of unfavorable remarks, also those expressing the truth.

Mutual Non-Disparagement Clauses

The original article does not address mutual non-disparagement – a significant omission.

A mutual non disparagement clause restricts both the employer and the employee from making negative statements about each other. These provisions are increasingly common in severance negotiations – and for good reason.

An employee agreeing not to criticize their former employer publicly should have parallel protection against the employer disparaging them to prospective future employers, industry contacts, or the media.

Without a mutual clause, the employer retains the ability to harm the employee’s professional reputation while the employee’s hands are tied.

When negotiating any non-disparagement clause, asking for mutuality is one of the most important steps an employee can take.

An employer who refuses to agree to mutual non-disparagement reveals something important about how they plan to handle the post-employment relationship.

What Happens If You Violate A Non-Disparagement Clause

Breaching a non disparagement clause has real financial consequences – but the practical reality is more nuanced than most articles acknowledge.

The most common consequence is the obligation to return severance pay. If the clause was a condition of receiving severance, a breach may require you to repay some or all of the severance received.

Beyond severance recovery, the employer may seek damages for reputational or financial harm caused by the disparaging statements. However, proving those damages is difficult.

An employer claiming that a former employee’s social media post cost them $500,000 in lost business must produce evidence of that loss – not merely assert it.

Enforcement is also expensive.

Initiating litigation against a former employee for violating such a clause requires legal fees, court costs, and management time. All of this often exceeds the provable damages.

This practical reality limits how aggressively employers pursue enforcement for minor or low-impact violations.

That said, taking enforcement for granted is a mistake. High-profile violations – particularly those involving media interviews, viral social media posts, or statements that attract significant public attention – are more likely to trigger enforcement action.

Statutory Exceptions: What No Non Disparagement Clause Can Prohibit

Regardless of what a non-disparagement clause says, certain communications are protected by law and cannot be restricted by any private agreement. For insurance, you cannot be:

• Prevented from filing a workers’ compensation claim.
• Prohibited from speaking to government agencies conducting investigations – including the EEOC, NLRB, SEC, FDA, or OSHA.
• Prevented from reporting illegal activity, including violations of federal or state law.
• Restricted from testifying truthfully in legal proceedings.

These protected activities exist because the legal system depends on individuals’ ability to communicate with enforcement agencies without contractual interference. [Source: Venable LLP]

A non disparagement clause that attempts to prohibit any of these activities is not merely unenforceable. In some contexts, the act of asking an employee to sign such a clause is itself an unlawful employment practice.

Should You Sign a Non-Disparagement Clause?

The decision depends on your specific circumstances – but these questions should guide your evaluation.

What Are You Receiving In Exchange?

A non-disparagement clause embedded in a severance agreement conditions your payment on your silence. Evaluate whether the financial consideration offered is proportionate to the restriction being imposed.

How Broad Is The Clause?

Does it prohibit false statements only, or all negative statements including truthful ones? Does it include carve-outs for government agency communications and legal testimony? And does it have a time limit or is it perpetual?

Is It Mutual?

If you are restricting your speech, is the employer restricting theirs? If not, negotiate for mutuality.

Does It Apply Retroactively?

A non-disparagement clause should only cover conduct after signing. Any clause that attempts to capture statements you already made before signing is a significant red flag that warrants legal review before you put pen to paper.

Are You In A Sexual Misconduct Situation?

If the underlying dispute involves sexual harassment or assault, the Speak Out Act may render a pre-dispute clause unenforceable. State law may provide additional protections. Consult an employment attorney before signing anything.

What Are Your Plans?

If you are planning to speak publicly about your experience – to journalists, on social media, or in future professional contexts – understand precisely what you are giving up before signing.

Disclaimer: This article is for general informational and educational purposes only. It does not constitute legal advice. Non-disparagement clause law varies significantly by jurisdiction, employee classification, and individual contract terms. If you have been asked to sign a non-disparagement clause or believe one has been violated, consult a qualified employment attorney in your jurisdiction before taking action.

Sources:

• NLRB – McLaren Macomb, 372 NLRB No. 58 (2023) – nlrb.gov
• NLRB Memorandum GC 23-05 – Guidance on Non-Disparagement and Confidentiality Provisions (March 22, 2023) – nlrb.gov
• Mintz Levin – NLRB Moves Away from Biden-Era Approach on Severance Agreements (March 2025) – mintz.com
• Legal News Online – The Cases Quietly Reshaping Employment Law in 2026 (May 2026) – legalnewsonline.org
• Hunton Andrews Kurth – Speak Out Act Restricts Use of Non-Disclosure and Non-Disparagement Provisions (December 2022) – hunton.com
• Gibson Dunn – Biden Signs Speak Out Act (December 2022) – gibsondunn.com
• Venable LLP – The List of States Regulating Non-Disclosure Provisions Continues to Grow (2024) – venable.com
• Nisar Law Group – Confidentiality and Non-Disparagement Provisions (February 2026) – nisarlaw.com
• Mosson Law – NLRB Bans Non-Disparagement and Confidentiality Clauses in Employment Severance Agreements – mossonlaw.com
• Tulane University Law – Speak Out Act and Its Implications on Business (December 2025) – online.law.tulane.edu
• Ward and Smith P.A. – Confidentiality and Non-Disparagement Agreements with Non-Supervisory Employees (December 2025) – wardandsmith.com
• Speak Out Act, Pub. L. 117–224, 136 Stat. 2290 (December 7, 2022) – congress.gov
• National Labor Relations Act, 29 U.S.C. § 157 – Section 7 Protected Activity