Whether a non-disparagement clause is enforceable depends on how narrowly it is written, who signed it, what kind of speech it tries to silence, and whether it leaves room for legally protected activity. Many clauses hold up in court. Others collapse the moment they are tested, because federal law, agency rules, and in some states statute, strip employers and businesses of the power to contract around certain kinds of speech. If you signed one, the practical question is not whether non-disparagement agreements are legal in general. It is whether yours restricts something the law refuses to let a contract touch.
What These Clauses Usually Try to Restrict
A non-disparagement clause is a contract provision in which one or both parties agree not to make negative statements about the other. They appear most often in severance packages, settlement agreements, employment contracts, and business sale documents. The core purpose is reputation protection: a company pays money and expects the recipient not to publicly criticize the company, its leadership, or its products.
Scope varies. A narrow clause might cover only statements about a specific executive or the terms of the deal. A broad clause reaches the entire company, every subsidiary, all board members, and every product line. Clauses can be one-sided, binding only the departing employee, or mutual, restricting both parties. Most specify the channels covered: social media, online reviews, interviews, public statements, sometimes private conversations. Breadth is where enforceability problems start.
Speech a Non-Disparagement Clause Cannot Silence
Several categories of speech are legally shielded regardless of what the contract says. A clause that purports to restrict any of them is unenforceable to that extent, and in some circumstances the overreach can void more than the offending phrase.
Sexual Assault and Sexual Harassment
The Speak Out Act, signed into law in December 2022, makes non-disparagement and non-disclosure clauses unenforceable when they would prevent someone from speaking about sexual assault or sexual harassment. The restriction applies specifically to clauses agreed to before the dispute arises.1Office of the Law Revision Counsel. 42 USC Chapter 164 – Speak Out Act If you signed a broad non-disparagement agreement as part of your employment contract and later experienced harassment, the clause cannot stop you from discussing it. The law covers conduct that would violate federal, tribal, or state law and applies to claims filed on or after the Act’s enactment date.2United States Congress. S.4524 – Speak Out Act
One important limit: the Act does not void non-disparagement clauses in settlement agreements negotiated after a dispute has already surfaced. If you settle a harassment claim and agree to a non-disparagement clause as part of that settlement, the Speak Out Act does not rescue you. The dividing line is predispute versus post-dispute.
EEOC Charges and Investigations
No private contract can prevent you from filing a discrimination charge with the Equal Employment Opportunity Commission or participating in an EEOC investigation. The EEOC’s position is that these rights are non-waivable under Title VII, the ADA, the ADEA, and the Equal Pay Act. Any agreement that extracts a promise not to file a charge or cooperate with an EEOC proceeding is void as against public policy.3U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Non-Waivable Employee Rights Under EEOC Enforced Statutes
SEC Whistleblower Reports
The Securities and Exchange Commission prohibits any person from acting to impede someone communicating directly with the SEC about possible securities law violations. Under Rule 21F-17(a), that includes enforcing or threatening to enforce a confidentiality agreement.4eCFR. 17 CFR 240.21F-17 Companies that have written non-disparagement language attempting to restrict SEC reporting have faced enforcement actions and significant penalties.5U.S. Securities and Exchange Commission. Whistleblower Protections
Workplace Safety and Environmental Reports
Whistleblower protections enforced by OSHA span more than 20 federal statutes covering workplace safety, environmental, financial, and transportation laws.6Occupational Safety and Health Administration. OSHA’s Whistleblower Protection Program Environmental whistleblowers are protected under six major environmental statutes, including the Clean Water Act, Clean Air Act, and CERCLA.7Environmental Protection Agency. Whistleblower Protection A clause that purports to restrict these reports is unenforceable to that extent.
Crime Reports and Subpoenaed Testimony
Reporting criminal activity to law enforcement is always protected, even if a non-disparagement clause appears to prohibit it. No private agreement can create an obligation to conceal a crime. If a court subpoenas you to testify, your legal obligation to tell the truth overrides any contractual silence provision. Refusing a subpoena to honor a non-disparagement clause would put you in contempt of court.
Honest Consumer Reviews
Outside the employment context, the Consumer Review Fairness Act voids any provision in a standard-form contract that prohibits or penalizes a consumer for posting a review, or that forces the consumer to assign intellectual property rights in the review content.8Office of the Law Revision Counsel. 15 USC 45b – Consumer Review Protection It covers written and oral reviews, social media posts, photos, and videos about a company’s products, services, or conduct. The Act applies to “form contracts” where the consumer has no meaningful opportunity to negotiate. It does not apply to employment contracts or independent contractor agreements.9Federal Trade Commission. Consumer Review Fairness Act: What Businesses Need to Know A violation is treated the same as violating an FTC rule on unfair or deceptive practices, which can carry civil penalties of over $50,000 per violation.
Severance Agreements and the NLRA
The biggest recent shift came from the National Labor Relations Board’s 2023 decision in McLaren Macomb. The Board ruled that merely offering a severance agreement with an overly broad non-disparagement clause violates the National Labor Relations Act, because it pressures employees into giving up their right to discuss working conditions with coworkers and the public.10National Labor Relations Board. Board Rules That Employers May Not Offer Severance Agreements Requiring Employees to Broadly Waive Labor Law Rights The NLRA protects “concerted activities for mutual aid or protection,” which includes talking about pay, safety concerns, and workplace problems, and the Board found broad non-disparagement language chills those rights.
This protection applies to most private-sector workers regardless of union membership. It does not cover everyone. The NLRA’s definition of “employee” excludes supervisors, meaning anyone with authority to hire, fire, discipline, or direct other workers using independent judgment.11National Labor Relations Board. National Labor Relations Act If you hold a managerial role with genuine supervisory duties, McLaren Macomb does not protect you. Public-sector employees, agricultural workers, and independent contractors are also outside NLRA coverage.
The practical weight of McLaren Macomb depends partly on who is running the NLRB. In February 2025, President Trump appointed William B. Cowen as Acting General Counsel.12National Labor Relations Board. President Trump Appoints William B. Cowen Acting General Counsel of the National Labor Relations Board One of Cowen’s first actions was rescinding the prior General Counsel’s guidance memo on enforcing the McLaren Macomb ruling.13National Labor Relations Board. GC 25-05 Rescission of Certain General Counsel Memoranda Rescinding the guidance does not overturn the decision. McLaren Macomb remains binding Board precedent until a future majority formally reverses it. But the General Counsel controls which cases get prosecuted, and a GC skeptical of the ruling is unlikely to bring new enforcement actions based on it. The decision is still current law. The enforcement environment is softer than it was in 2023 and 2024.
State Laws Can Add More
A growing number of states have enacted their own restrictions on non-disparagement and non-disclosure provisions in employment and settlement contexts. These generally target clauses that would conceal workplace harassment, discrimination, or retaliation. Some void provisions that restrict employees from disclosing conduct they reasonably believe to be illegal. Others focus on settlement agreements, requiring that confidentiality be the employee’s preference rather than the employer’s demand. Which claims are covered, whether independent contractors are included, and what penalties apply vary considerably. Before you sign a severance or settlement agreement, check whether your state has gone beyond the federal floor.
What a Breach Actually Costs If the Clause Is Valid
When a non-disparagement clause is enforceable and someone violates it, the financial consequences can be substantial. The common remedies:
- Liquidated damages. Many agreements specify a set dollar amount owed for each breach. Courts will enforce these provisions as long as the amount is a reasonable estimate of anticipated harm rather than a punishment.
- Clawback of severance. Some agreements require the breaching party to return all or part of their severance payment. Whether a single negative comment triggers a full clawback often depends on whether the breach is “material,” meaning it goes to the heart of the agreement’s purpose.
- Injunctions. A court can order you to stop making the prohibited statements. Violating that order means contempt, which can carry additional fines or jail time. Courts weighing an injunction look at whether the original waiver of speech rights was knowing and voluntary, whether the speech involves matters of public concern, and whether the injunction is precise enough to be enforceable.
- Attorney fees. Under the American Rule, each side normally pays its own legal costs. Many non-disparagement clauses include fee-shifting provisions requiring the breaching party to cover the other side’s fees.
Not every negative comment qualifies as a material breach. Courts look at the overall context. In one federal case, a reference containing some negative remarks alongside numerous positive statements was found not to be a material breach, because the reference taken as a whole was positive or at worst neutral. A single offhand remark is less likely to trigger full clawback than a sustained public campaign.
What Makes a Clause Likely to Hold Up
Clauses that survive legal challenges share common traits. They are specific about the speech restricted, they acknowledge the legal rights they cannot override, and they avoid sweeping language that invites an unfair labor practice charge or a court striking the entire provision.
- Narrow scope. The clause names specific people and entities rather than every subsidiary, affiliate, and board member. The broader the sweep, the more likely the whole clause falls rather than being partially enforced.
- A savings clause. The agreement explicitly states that nothing in it restricts the signer’s right to file charges with the EEOC, communicate with the SEC, report violations to OSHA, engage in protected concerted activity under the NLRA, or report criminal conduct. The McLaren Macomb decision and its progeny suggest the absence of these carve-outs is what makes a clause unlawfully broad.10National Labor Relations Board. Board Rules That Employers May Not Offer Severance Agreements Requiring Employees to Broadly Waive Labor Law Rights
- Mutual obligations. One-sided clauses face greater scrutiny because they signal unequal bargaining power. Mutual language signals a genuine exchange.
- Proportionate remedies. Liquidated damages bear some relationship to the actual harm a breach would cause. Wildly disproportionate amounts invite courts to throw out the provision as an unenforceable penalty.
- A defined duration. Courts are more skeptical of perpetual restrictions. A time limit signals reasonableness.
Even a well-drafted clause is not bulletproof. Enforceability turns on the specific facts, the jurisdiction, and whether the regulatory landscape has shifted since signing. The current NLRB posture may change again with future administrations. For the person signing, the practical reading is this: the clause binds you where it is narrow and the speech is unprotected, and it does not bind you where federal or state law has already removed that speech from the reach of a private contract.