The Clause That Could Cost You Your Voice
You have been laid off, and the severance agreement looks reasonable: three months of pay, benefits continuation, and a signed release of claims. But tucked into the boilerplate is a non-disparagement clause that prohibits you from making any "negative, critical, or disparaging statements" about the company, its officers, its products, or its business practices. Forever.
Non-disparagement clauses are one of the most common and least understood provisions in severance agreements. They appear in an estimated 70% to 80% of all severance packages, and until recently, most employees signed them without a second thought. But a landmark ruling by the National Labor Relations Board has fundamentally changed the legal landscape, and understanding your rights under the new framework could save you from signing away protections you did not know you had.
The Short Answer
A non-disparagement clause prohibits you from making negative statements about your former employer, often indefinitely and on any platform. They appear in 70-80% of severance agreements.
The NLRB's February 2023 McLaren Macomb decision dramatically narrowed enforceability: overly broad non-disparagement clauses now violate Section 7 of the NLRA (which protects employees' rights to discuss wages and working conditions, file complaints, and engage in concerted activity). The clause may still be enforceable for genuinely defamatory false statements, but a blanket ban on "negative" speech is likely unenforceable post-McLaren.
If your severance agreement contains an overly broad non-disparagement clause, always negotiate carve-outs for legally protected speech: discussions with coworkers, regulators, the NLRB, the EEOC, and any communication required by law. The rest of this post covers what the McLaren decision changed, what is still enforceable, and the specific revisions to request.
What Non-Disparagement Clauses Actually Say
A typical non-disparagement clause in a severance agreement reads something like this:
"Employee agrees that Employee will not make any negative, disparaging, or defamatory statements, whether oral, written, or electronic, about the Company, its officers, directors, employees, products, services, or business practices, to any person or entity, including but not limited to current or former employees, clients, vendors, media outlets, or on any social media platform."
The scope of these clauses is often breathtakingly broad. They may cover any negative statement, not just false ones. They may extend to communications with family members, friends, journalists, regulators, and online review platforms. They may last indefinitely, with no expiration date. And they may include liquidated damages provisions that require you to pay back your entire severance package, plus attorney's fees, if you violate the clause.
The McLaren Macomb Decision: A Watershed Moment
In February 2023, the National Labor Relations Board (NLRB) issued a decision in McLaren Macomb that sent shockwaves through employment law. The Board held that severance agreements containing overly broad non-disparagement clauses violate Section 7 of the National Labor Relations Act (NLRA), which protects employees' rights to engage in "concerted activity" for mutual aid and protection.
What the NLRB Decided
The Board found that non-disparagement clauses in severance agreements are unlawful if they have a "reasonable tendency" to chill employees from exercising their Section 7 rights. These rights include discussing wages and working conditions with coworkers and former coworkers, filing unfair labor practice charges, cooperating with NLRB investigations, communicating with unions, and engaging in other protected concerted activity.
The Board ruled that simply offering a severance agreement with an unlawfully broad non-disparagement clause constitutes an unfair labor practice, even if the employee does not sign it. The mere presentation of such a clause can have a chilling effect on protected activity.
Who McLaren Macomb Covers
The NLRA covers most private-sector employees, including non-union workers. However, it does not cover:
- Supervisors and managers who have authority to hire, fire, or direct employees
- Independent contractors
- Government employees (federal, state, and local)
- Agricultural laborers
- Domestic workers
If you fall into one of these categories, the McLaren Macomb decision does not directly protect you, though its reasoning has influenced courts and state regulators more broadly.
Practical Impact
Since McLaren Macomb, employers have been forced to narrow their non-disparagement clauses or risk unfair labor practice charges. Many companies have revised their standard severance templates to include carve-outs that explicitly preserve employees' Section 7 rights. The most common language now reads something like: "Nothing in this agreement restricts Employee's rights under the National Labor Relations Act to engage in protected concerted activity."
However, not all employers have updated their templates, and many continue to present overly broad clauses, betting that employees will not know their rights.
What Is Enforceable After McLaren Macomb
The NLRB did not ban non-disparagement clauses entirely. Narrowly tailored clauses that protect legitimate business interests without chilling protected activity remain enforceable. Here is what employers can and cannot do.
Enforceable Restrictions
- Prohibiting knowingly false statements about the company
- Restricting disclosure of trade secrets and confidential business information
- Limiting disparagement of specific individuals by name (as opposed to the company generally)
- Clauses with reasonable time limits (one to two years rather than perpetuity)
- Restrictions with specific scope (e.g., statements to competitors, clients, or media) rather than blanket prohibitions
Likely Unenforceable Restrictions
- Blanket prohibitions on any negative statement about the company
- Restrictions that cover communications with coworkers and former coworkers
- Clauses with no time limit (perpetual non-disparagement)
- Provisions that restrict truthful statements about working conditions
- Clauses that prohibit participation in government investigations or cooperating with regulators
Social Media and Online Reviews
Non-disparagement clauses intersect awkwardly with the modern reality of social media and employer review platforms. Here is how to navigate common scenarios.
Glassdoor and Indeed Reviews
Posting a truthful, factual review of your experience on Glassdoor or a similar platform is generally protected activity under the NLRA if you are a non-supervisory employee discussing working conditions. However, a review that contains false statements of fact (as opposed to opinions) could expose you to a defamation claim regardless of any non-disparagement clause.
Best practice: Stick to factual, first-person observations. "I was asked to work 60-hour weeks with no overtime pay" is a statement of fact. "This company is a scam" is an opinion that, while likely protected as opinion, is more likely to provoke a legal response.
LinkedIn and Professional Networks
Non-disparagement clauses typically extend to social media posts, but the enforceability of this extension depends on the content. A LinkedIn post describing your layoff experience and the lessons you learned is unlikely to violate a narrowly tailored clause. A post specifically attacking your former employer's management team by name may cross the line.
Private Conversations
Many non-disparagement clauses purport to cover private conversations, including discussions with friends, family, and future employers. In practice, these provisions are nearly impossible to enforce because the employer would need to learn about the conversation and prove its content. However, private communications can surface in unexpected ways, so discretion is always advisable.
Negotiation Strategies for Non-Disparagement Clauses
When reviewing a severance agreement with a non-disparagement clause, consider these approaches.
Strategy 1: Make It Mutual
The most effective modification is making the non-disparagement obligation mutual. If you cannot say negative things about the company, the company should be equally restricted from saying negative things about you. This is particularly important because negative statements by a former employer can damage your career far more than anything you might say about them.
Request language like: "Company agrees that its officers, directors, and authorized spokespersons will not make negative, disparaging, or defamatory statements about Employee."
Strategy 2: Limit the Scope
Narrow the clause to cover only statements that are both negative and false. Truthful statements should be expressly excluded. Also narrow the audience: restrict your obligations regarding communications with media, competitors, and clients, but preserve your right to discuss your experience with friends, family, professional contacts, and future employers.
Strategy 3: Add an Expiration Date
If the clause does not have a time limit, negotiate one. A one-year non-disparagement period is reasonable. A perpetual obligation is not, and it signals that the employer is more interested in silencing you than protecting legitimate interests.
Strategy 4: Carve Out Protected Activity
Ensure the clause explicitly states that it does not restrict your rights to file complaints with government agencies (EEOC, OSHA, SEC, NLRB), participate in government investigations, provide truthful testimony in legal proceedings, discuss your wages and working conditions with others, or exercise any rights under the NLRA.
Strategy 5: Remove Liquidated Damages
Many non-disparagement clauses include a provision requiring the employee to return the entire severance payment if they violate the clause. This creates an enormous deterrent effect and may itself be unenforceable as a penalty rather than a reasonable estimate of damages. Negotiate to remove this provision or replace it with a requirement that the employer demonstrate actual damages.
State-Level Protections
Several states have enacted laws that further restrict non-disparagement clauses in the employment context.
California prohibits non-disparagement clauses that prevent employees from disclosing information about unlawful acts in the workplace, including harassment, discrimination, and retaliation. Senate Bill 331 (the "Silenced No More Act") expanded this protection beyond sexual harassment to cover all forms of workplace misconduct.
New Jersey passed a similar law in 2019, prohibiting non-disclosure and non-disparagement provisions in employment agreements related to discrimination, retaliation, or harassment claims.
Washington state enacted legislation restricting non-disparagement clauses that prevent employees from disclosing sexual harassment or assault.
These state protections apply regardless of the NLRA and cover employees who may be excluded from the NLRA's scope, such as supervisors and managers.
What to Do If You Already Signed
If you have already signed a severance agreement with a broad non-disparagement clause, you are not necessarily bound by its full terms. If you are a non-supervisory private-sector employee, the McLaren Macomb decision means that overly broad provisions may be unenforceable from the start. Consult an employment attorney to evaluate the specific language in your agreement.
Even if the clause is enforceable, remedies for violation are limited. Most employers will not sue a former employee for disparagement unless the statements cause demonstrable financial harm. The far more common remedy is a demand letter threatening legal action, which is often a bluff.
The Bottom Line: Know What You Are Signing
Non-disparagement clauses are negotiable, and the legal framework has shifted significantly in employees' favor since the McLaren Macomb decision. Before signing any severance agreement, read the non-disparagement clause carefully and consider whether it unreasonably restricts your rights.
Review your severance agreement for red flags, use our severance calculator to make sure the financial terms justify the restrictions, and consult an employment attorney if the clause is overly broad. Your ability to speak truthfully about your professional experience is a valuable right. Do not give it away without adequate compensation.