Severance Agreement Analyzer
Non-Disparagement Clauses in Severance Agreements: What You Can and Can't Say
Most severance agreements include non-disparagement clauses. Learn exactly what they prohibit, what they can't restrict, and how to negotiate for reasonable terms.
Non-disparagement clauses are now standard in almost every severance agreement. But most people don't understand exactly what these clauses prohibit — and most don't know that certain speech rights cannot be waived even with a signed agreement. Here's exactly what non-disparagement does and doesn't restrict.
At a Glance
Sections
5
FAQs answered
5
Reading time
5 min
Tool available
$44.99
What Non-Disparagement Clauses Typically Say
A typical non-disparagement clause reads something like:
'Employee agrees not to make any negative, disparaging, or defamatory statements, whether oral or written, about Company, its officers, directors, employees, products, or services to any third party, including but not limited to current or former employees, customers, clients, vendors, media representatives, or the general public.'
What this covers:
- Social media posts criticizing the company
- Negative comments to current or former colleagues
- Critical reviews on Glassdoor or LinkedIn
- Media interviews about your experience
- Public statements at industry events
What this typically doesn't cover (or shouldn't):
- Truthful statements in response to subpoena or court order
- Communications with government agencies (EEOC, OSHA, NLRB)
- Providing testimony under oath
- Communications with your attorney
- Statements made for legitimate business purposes
You know what to do. Now let AI do it for you.
You've read the playbook. Counter Gameplan writes your letter, pulls the legal angles, and sends it to your inbox — in 60 seconds.
What Non-Disparagement Cannot Legally Restrict
Regardless of what a non-disparagement clause says, certain communications cannot be prohibited:
Government agency communications: You have an absolute right to file charges with the EEOC, communicate with OSHA, participate in NLRB proceedings, or cooperate with any government investigation. Any clause purporting to prohibit this is void and unenforceable.
NLRA Section 7 rights: The National Labor Relations Board has ruled (Stericycle, 2023) that overly broad non-disparagement clauses can violate workers' rights under Section 7 of the NLRA — which protects the right to discuss wages, working conditions, and other workplace matters with coworkers. Clauses that could chill Section 7 activity may be unenforceable.
Truthful testimony: You cannot be contractually bound to give false testimony. A non-disparagement clause doesn't require you to lie under oath.
Reporting crimes: No contract can prohibit you from reporting criminal conduct to law enforcement.
SEC whistleblower: Under Dodd-Frank, no agreement can prohibit reporting securities violations to the SEC. SEC rules specifically prohibit clauses that would chill whistleblower complaints.
Glassdoor, LinkedIn, and Online Reviews
Can you leave a Glassdoor review after signing a non-disparagement agreement? This is one of the most common questions.
The short answer: A non-disparagement clause with standard language probably restricts negative online reviews. If you post a critical Glassdoor review that violates the clause, you could face clawback of severance or a breach of contract claim.
What's allowed:
- Factually accurate, positive reviews are fine
- Reviews that describe your experience neutrally without negative characterizations
- Anonymous reviews (though courts have ordered Glassdoor to reveal reviewer identities in some cases)
The enforcement reality: Most employers don't actively monitor Glassdoor for former employee reviews or pursue legal action over mildly negative reviews. But for executives with high-dollar severances and specific non-disparagement terms, the risk is real.
Negotiating a carve-out: When negotiating the severance, specifically negotiate for the right to leave honest Glassdoor reviews or speak truthfully about your experience when directly asked. Some employers will agree to this; others won't.
You know what to do. Now let AI do it for you.
You've read the playbook. Counter Gameplan writes your letter, pulls the legal angles, and sends it to your inbox — in 60 seconds.
Mutual vs. One-Sided Non-Disparagement
Non-disparagement clauses can be one-way (you agree; employer doesn't) or mutual (both parties agree).
Negotiate for mutuality: There's no reason you should agree not to say negative things about the employer if they can say negative things about you. A mutual non-disparagement protects your professional reputation.
What mutual means practically: The company agrees (through its officers, directors, HR, and official communications) not to say negative things about you. This matters for:
- Reference checks from future employers
- What HR says when asked about your departure
- What colleagues are told when you leave
The reference check protocol: Combine the mutual non-disparagement with a specific reference check agreement: the employer agrees that when contacted by future employers, HR will confirm only your dates of employment, title, and 'eligible for rehire' status — and will say nothing negative.
Get the reference protocol in writing as part of the agreement. This is more enforceable than just verbal assurances.
Enforcement and Consequences of Violation
If you violate a non-disparagement clause:
Clawback: If the severance agreement contains a clawback provision tied to non-disparagement violations, the employer may demand return of all or part of the severance.
Breach of contract lawsuit: The employer can sue you for breach of contract and seek damages. The challenge for the employer: proving actual damages caused by your disparaging statement.
Injunction: In some cases, courts issue injunctions prohibiting continued disparaging conduct.
Realistic enforcement: Employers rarely pursue non-disparagement violations unless:
- The violation is serious (media exposure, high-profile criticism)
- The severance amount is large
- The employer has a significant reputation interest at stake
For most former employees, the risk of enforcement for minor Glassdoor reviews or private conversations is low — but the contract obligation still exists.
Still have questions? Read the FAQs below — or let the AI handle it for you →
Frequently Asked Questions
Quick answers to the most common questions on this topic.
Can I talk to my friends and family about my job loss?
+
Generally yes — non-disparagement clauses target public negative statements, not private conversations with family. However, broadly written clauses might technically cover 'any third party.' In practice, enforcement for private family conversations is virtually nonexistent.
What happens if the employer violates the mutual non-disparagement by giving me a bad reference?
+
You'd have a breach of contract claim against the employer. Document the violation (notes from the reference check conversation, witnesses). This breach could give you grounds to seek damages and potentially void the entire agreement.
Can I participate in a class action against my former employer after signing non-disparagement?
+
Non-disparagement clauses don't typically prevent participation in legal proceedings. A class action is a legal proceeding, and your rights as a class member or plaintiff typically can't be waived by a non-disparagement clause.
Is 'disparagement' defined in the agreement?
+
Often not precisely, which creates ambiguity. Negotiate to add a definition: 'Disparagement means false statements made with knowledge of their falsity or reckless disregard for their truth or falsity.' This limits the clause to defamation-standard false statements rather than truthful negative statements.
Can my employer require confidentiality of the non-disparagement clause itself?
+
They can require confidentiality of the severance agreement's terms (including the existence and amount of the non-disparagement provision). However, you can typically tell a new employer that you're subject to certain restrictions — just not the specific terms.