A non-disparagement clause is a contract term that stops one or both parties making negative statements about the other. You'll usually see it in severance, settlement and employment agreements. It can't stop you filing a charge with the EEOC, and since the 2022 Speak Out Act a clause signed before a dispute can't be enforced in court to silence claims of sexual harassment or assault.
The Speak Out Act defines it as a provision that requires one or more parties not to make a negative statement about another party. That's broader than a confidentiality clause, which stops you sharing information. A non-disparagement clause stops you giving opinions too, which is why the limits on it matter.
Where the limits come from
| Limit | What it does | Source |
|---|---|---|
| Speak Out Act (US) | A non-disparagement or nondisclosure clause agreed before a sexual assault or sexual harassment dispute arises isn't judicially enforceable where the conduct is alleged to break federal, tribal or state law | Public Law 117-224, section 4 |
| EEOC charges (US) | No agreement can stop you filing a charge with the EEOC or taking part in its investigation; clauses that try are unenforceable | EEOC severance waiver Q&A |
| Labor law rights (US) | In its 2023 McLaren Macomb decision the NLRB held that simply offering a severance agreement that broadly waives employees' rights under the National Labor Relations Act is unlawful | NLRB news release |
| Whistleblowing (UK) | Confidentiality clauses aren't valid if they try to stop a worker making a protected whistleblowing disclosure | GOV.UK |
The Speak Out Act in plain English
The key word is 'predispute'. The Act only covers clauses agreed before the dispute arose, such as a non-disparagement term buried in an offer letter or employee handbook. If you later raise a sexual harassment or sexual assault complaint, that earlier clause can't be used in court to stop you talking about it, where the conduct is alleged to violate law. It doesn't cover a clause you agree to as part of settling a dispute that already exists, and the Act says states can still enforce their own laws that protect employees at least as much.
The NLRB and severance agreements
The NLRB's McLaren Macomb case involved severance agreements offered to furloughed employees that banned statements that could disparage the employer and barred them from disclosing the agreement's terms. The Board ruled that offering such an agreement was itself unlawful, because it tries to make employees choose between a benefit and their rights under Section 7 of the Act, such as discussing working conditions with colleagues. Board precedent can change when the Board's membership changes, so check the current position before relying on it in a dispute. It also applies to employees covered by the Act, not to supervisors and managers.
What a non-disparagement clause can still do
- Stop you posting negative reviews or comments about the employer on social media, within the limits above.
- Bind the employer too, if it's mutual: ask for that.
- Last for a long time, sometimes indefinitely, unless the clause says otherwise.
- Give the other side a breach claim, sometimes with clawback of severance, if the clause includes one.
If you're also asked to keep the deal confidential, our guide to non-disclosure agreements covers what an NDA can lawfully cover, and settlement agreements explains how UK exit deals work.
For employers: drafting a fair clause
If you're the business asking for the clause, a narrow, mutual version is easier to get signed and easier to defend. A clause that tries to silence everything tends to fail exactly when you need it.
- Make it mutual and say which managers it binds on your side.
- Carve out regulators, the EEOC, the NLRB, the police and legal proceedings in plain words.
- Leave sexual harassment and assault claims alone: a predispute clause can't be enforced against them under the Speak Out Act.
- Set a reasonable end date rather than 'forever'.
- Keep the remedy proportionate instead of clawing back every cent of severance for one comment.
If you think you've breached one
Read the exact wording before you panic. Many clauses only cover statements that are false, or only statements made publicly, and a truthful answer to a regulator or in court is usually protected. If you've posted something, take it down, keep a copy of what it said, and get advice before you reply to any letter.
Before you sign one
- Ask for it to be mutual, and for the employer's obligation to cover named managers, not just 'the company'.
- Check for a carve-out that preserves your right to talk to regulators, the EEOC, the NLRB or the police.
- Look for a time limit. A clause with no end date binds you for good.
- Read the penalty: a clawback of your severance for any breach is a big lever.
- Make sure truthful statements in legal proceedings are expressly allowed.
The verdict
A non-disparagement clause is a reasonable ask in an exit deal, and many people sign one without regret. The ones to push back on are one-sided, open-ended, carry a full clawback, or lack a clear carve-out for regulators. Ask for it to be mutual and time-limited, and get the carve-outs in writing. Most employers agree, because what they want is peace, not a court fight.
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Frequently asked questions
What is a non-disparagement clause?
A contract term that requires one or more parties not to make negative statements about another party, often found in severance, settlement and employment agreements.
Can a non-disparagement clause stop me reporting sexual harassment?
Under the Speak Out Act, a non-disparagement or nondisclosure clause agreed before a sexual harassment or sexual assault dispute arises isn't judicially enforceable where the conduct is alleged to violate law.
Can a severance agreement stop me filing an EEOC charge?
No. The EEOC says provisions that try to stop you filing a charge or taking part in an EEOC investigation are unenforceable.
Should a non-disparagement clause be mutual?
It's worth asking. A mutual clause binds the employer as well as you, ideally naming the managers it covers.
Does a non-disparagement clause stop me telling the truth?
Often it does, because most clauses ban negative statements whether or not they're true. That's why carve-outs matter: truthful statements to regulators, the EEOC or the NLRB, and in legal proceedings, should be expressly allowed, and some of those rights can't be signed away anyway.
How long does a non-disparagement clause last?
As long as the contract says. Many don't set an end date, which means they bind you indefinitely, so asking for a fixed period of a year or two is a reasonable request in any negotiation.
