What a Non-Disparagement Clause Really Blocks

By David M. · Published 4 September 2026, updated 12 September 2026 · Verified 3 September 2026 · Editorial policy

Applies to private-sector severance and separation agreements in the United States.

Not legal advice. The rules change from state to state, and federal courts do not all read them the same way. No page can cover your own facts, so if a deadline or a decision is close, talk to an employment lawyer where you live.

A non-disparagement clause in a US severance agreement is an ordinary contract promise, and breaking it can cost you the money. What it cannot do is close the routes to a government agency. California and Washington go further and void it outright for conduct you reasonably believed was unlawful.

The clause reaches what you say in public. It does not reach what you tell the Equal Employment Opportunity Commission or the Securities and Exchange Commission, because federal law puts those channels outside a private contract.

The National Labor Relations Board is a third route, but only if the labor Act covers you, which is a real limit and is dealt with below. Better agreements say so on their face. If yours does not, that is the first thing to ask for.

What does a non-disparagement clause actually stop you doing?

A non-disparagement clause is a promise not to say things that damage the employer’s reputation. It is broader than a confidentiality clause. Confidentiality covers information; non-disparagement covers opinion, and opinion is much harder to police your way around.

Read your clause for four things before anything else. Who it protects: the company alone, or officers, directors and staff by name. What it covers: statements only, or “any conduct” that reflects badly. Who it binds: you alone, or you and your spouse. And whether it is mutual.

Where the draft is one-way, ask for the mirror clause. It costs little to ask, and it binds the employer to the same restraint it is asking of you.

The reach is wider than the word “disparagement” suggests. If a clause restricts statements about the employer without limiting the place or the format, it covers a public review of the employer and a post naming a manager. It also covers an answer to a reference call that goes beyond dates and job title, or a podcast interview years later.

If you are still working out whether what happened to you was unlawful at all, settle that first. What actually counts as a hostile work environment and where US law reaches workplace bullying are the two questions underneath it.

Which parts of a non-disparagement clause cannot be enforced?

Three things cut through a non-disparagement or confidentiality clause whatever you signed.

Securities reporting. The SEC’s rule is written at the employer, not at you. The rule is 17 C.F.R. § 240.21F-17(a). It says: “No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement … with respect to such communications.” Read on the eCFR, 3 September 2026. Note that the threat is itself the violation. The rule bites even if nobody ever goes to court.

Trade secrets. Federal law gives you immunity for handing a trade secret to a government official, or to your own lawyer, “solely for the purpose of reporting or investigating a suspected violation of law”. The same immunity covers filing it under seal in a lawsuit, which means the court keeps it out of the public file. See 18 U.S.C. § 1833(b)(1) (Cornell LII).

Agency charges. An agency is not a party to your severance agreement, so your promise does not bind it. The Supreme Court made the point in EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). There is, it said, “no language in the statutes or in either of these cases suggesting that the existence of an arbitration agreement between private parties materially changes the EEOC’s statutory function or the remedies that are otherwise available”. Read in the Opinion of the Court at the official U.S. Reports, 3 September 2026.

That case was about an arbitration clause. The principle carries: a private agreement between you and your employer does not shrink what the agency may do. You can still file a charge. How to file an EEOC complaint sets out the sequence and the clocks.

Does the NLRB’s McLaren Macomb decision still help you?

The National Labor Relations Board decided McLaren Macomb, 372 NLRB No. 58, on 21 February 2023. Two limits decide what the holding is worth to you.

The Board said this: “Where an agreement unlawfully conditions receipt of severance benefits on the forfeiture of statutory rights, the mere proffer of the agreement itself violates the Act, because it has a reasonable tendency to interfere with or restrain the prospective exercise of Section 7 rights, both by the separating employee and those who remain employed.” That is from the Decision and Order, read 3 September 2026.

One point in that sentence does most of the work: the offer itself is the violation, whether or not you sign. Elsewhere in the same decision the Board said it would examine “the language of the agreement, including whether any relinquishment of Section 7 rights is narrowly tailored”, which is why the wording of your carve-outs matters.

Getting there meant overruling two of its own 2020 decisions, Baylor University Medical Center, 369 NLRB No. 43 (2020), and IGT d/b/a International Game Technology, 370 NLRB No. 50 (2020).

The guidance built on it has been withdrawn. A month after the decision, the Board’s General Counsel issued a memo, GC 23-05, telling regional offices how to apply it. Its own announcement carried a warning: “GC 23-05 reflects guidance from the NLRB’s General Counsel and does not represent the views of the Board” (NLRB news release, 22 March 2023).

On 14 February 2025 the Acting General Counsel, William B. Cowen, rescinded it. The withdrawn list names “GC 23-05 Guidance in Response to Inquiries about the McLaren Macomb Decision” (Memorandum GC 25-05). The decision stands. The instruction manual for it does not.

It may not cover you at all. Section 7 protects “employees”, and the Act’s own definition excludes, among others, “any individual employed as a supervisor” (29 U.S.C. § 152(3), Cornell LII). The same definition excludes agricultural and domestic workers, people employed by a parent or spouse, and independent contractors, and § 152(2) puts federal, state and local government outside “employer”.

If you managed people, this route probably closes before it opens. Quiet firing covers the same coverage question from the other end.

Does the Speak Out Act cover your severance agreement?

Probably not, and there are two reasons rather than one.

The Speak Out Act is real and it is federal. Section 19403(a) says: “With respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which conduct is alleged to have violated Federal, Tribal, or State law” (42 U.S.C. § 19403(a), Cornell LII).

Two limits are built into that sentence.

Subject matter. The Act reaches a sexual assault dispute or a sexual harassment dispute. It does nothing for a clause about anything else, however unfair the treatment was.

Timing. The Act reaches a clause “agreed to before the dispute arises”. Where the severance is settling the dispute, the clause sits outside the Act. Where you signed a routine exit package before any such dispute had arisen, the timing limit is met and the Act can reach it.

What the Act reaches is the clause buried in the contract you signed on your first day, before anything had happened. That is the one that would otherwise silence you about a sexual assault or sexual harassment claim years later.

Read your onboarding paperwork as well as your exit paperwork. The Act may do nothing for the document in front of you and everything for the one in your files from three years ago.

What do the state laws actually void?

Three states are worth reading closely, and each leaves something standing.

California. A separation agreement may not stop you disclosing information about unlawful acts in the workplace. Any restriction on discussing workplace conditions must carry this sentence, in substantially these words: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful” (Cal. Gov. Code § 12964.5(b)(1)(B), California Legislative Information, read 3 September 2026).

That sentence is a test you can run yourself. If it is missing from a California agreement, § 12964.5(b)(2) makes the provision unenforceable, meaning a court will not hold you to it.

Washington. A clause stopping you discussing conduct you “reasonably believed” was illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault is void (Wash. Rev. Code § 49.44.211(1), Washington State Legislature, read 3 September 2026).

The remedies are what set Washington apart. Asking you to sign the clause is itself a violation, under § 49.44.211(4). So is trying to enforce one “whether through a lawsuit, a threat to enforce, or any other attempt to influence a party to comply”, under § 49.44.211(5). Under § 49.44.211(7), an employer who violates the section after 9 June 2022 owes actual damages or $10,000, whichever is more, plus fees and costs. Under § 49.44.211(8), “employee” covers a current, former or prospective employee, and an independent contractor.

The section also reaches backwards. Section 49.44.211(11) reaches back past 9 June 2022 for one purpose only: to void nondisclosure and nondisparagement provisions in agreements signed before that date. An older Washington agreement is not safe from it.

New York. A settlement of a discrimination claim may not stop you disclosing the underlying facts and circumstances of the claim unless confidentiality is your own preference (N.Y. Gen. Oblig. Law § 5-336, New York State Senate). The section also builds in time to consider the confidentiality term and time to revoke it after signing.

Silence in New York has to be chosen by you rather than imposed. That is a different design from California and Washington, which void the term outright.

Other states, including New Jersey, Oregon and Illinois, have comparable statutes. The governing-law clause in your agreement can decide which set reaches you, which is why finding that clause is on the checklist below.

The table below lists each state rule in this section and the law it comes from.

How long do you get to decide, and can you change your mind?

Two clocks matter, and they come from different laws.

The first clock comes from age discrimination law. Check whether your agreement waives a claim under the Age Discrimination in Employment Act; that is what switches these periods on.

Where it does, the waiver only counts if it is knowing and voluntary, meaning you understood it and were not pushed. Section 626(f)(1) lists what that takes. Among other things, § 626(f)(1)(E) requires that you be advised in writing to consult a lawyer first; § 626(f)(1)(F)(i) gives you “a period of at least 21 days within which to consider the agreement”; and § 626(f)(1)(G) gives you at least 7 days after signing to revoke it. The agreement does not take effect until those 7 days are up (Cornell LII).

Where the offer is part of a group exit or termination program, two more things apply. Section 626(f)(1)(F)(ii) makes the time to consider “at least 45 days”. And § 626(f)(1)(H)(ii) requires the employer to give you, in writing, the job titles and ages of everyone eligible or selected for the program, plus the ages of everyone in the same job classification or unit who was not. Ask for that list. It is the only document that shows you the shape of the whole exercise.

In California, a separation agreement must tell you that you have a right to consult a lawyer and give you “a reasonable time period of not less than five business days” to do it, under Cal. Gov. Code § 12964.5(b)(4). You may sign sooner, but only if that choice is knowing and voluntary and was not induced by a threat to withdraw or worsen the offer.

Where the agreement waives an age claim, seven days is not a formality. It is seven days in which a lawyer can read the document and you can still walk the signature back. An agreement that gives you no such window cannot validly waive an age claim at all.

Each time limit and right in this section is listed below with its law.

What should you ask for before you sign?

Ask in writing, ask for all of it at once, and ask early. A first draft is a first draft. The five requests below are review points, not an attack on the deal.

1. Make the clause mutual. The company
   and its named officers agree not to
   disparage me on the same terms.

2. Add the carve-out sentence in full:
   "Nothing in this agreement prevents
   you from discussing or disclosing
   information about unlawful acts in
   the workplace, such as harassment
   or discrimination or any other
   conduct that you have reason to
   believe is unlawful."

3. Add the trade secret immunity
   notice required by 18 U.S.C.
   section 1833(b)(3)(A).

4. Name the agreed reference: dates of
   employment, job title, and who
   gives it. Attach it as an exhibit.

5. Confirm in writing how long I have
   to decide, how long I have to
   change my mind, and the date each
   one ends.

Keep every version of the draft and every email about it. If the offer is later withdrawn or worsened after you raised any of this, the sequence is the claim. See how to prove workplace retaliation and how to document workplace mistreatment so it holds up.

What does the confidentiality term cost the employer?

Knowing what the clause costs the other side tells you which requests are worth making.

For a harassment matter there is a tax rule pointing the other way. Under 26 U.S.C. § 162(q), no deduction is allowed for “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement”, or for the attorney’s fees on it (Cornell LII).

Read the condition carefully: the rule bites where the payment is “subject to a nondisclosure agreement”. A non-disparagement term is not automatically a nondisclosure agreement, so a settlement carrying only the former may sit outside § 162(q).

Where the package does include an NDA on a harassment matter, the employer has given up the deduction to get it. That is what the confidentiality term costs them, and it is worth asking what it is buying.

The broader point is that a non-disparagement clause is a reputational term, not a legal shield. It does not make the underlying events disappear, it does not stop an agency investigating, and it does not stop anyone else talking.

What it does is transfer the risk of public criticism onto you, priced at the severance figure. Decide whether that is a trade you want before you decide whether the number is big enough.

What should you do this week?

In order:

1. Write down the date the offer landed and the date it expires. Every clock in this article runs from a date somebody will later dispute.
2. Check which state’s law governs the agreement. It is a single line near the end, and it can decide whether the California, Washington or New York rules above reach you at all.
3. Read your onboarding paperwork, not just the severance. The Speak Out Act reaches clauses agreed before the dispute, such as those in your onboarding papers.
4. Send the five requests in one email. One list is easier to answer than five separate messages, and it dates your requests to a single point.
5. Do not sign early because someone is chasing you. If you already signed an agreement that waives an age claim, count seven days from signature and act inside that window.

Common questions about non-disparagement clauses

Can a non-disparagement clause stop you reporting your employer to a government agency?

No. A securities confidentiality term cannot be enforced or threatened against you to block contact with the SEC under 17 C.F.R. § 240.21F-17(a). Federal trade secret law gives you immunity for handing a trade secret to a government official to report a suspected violation of law under 18 U.S.C. § 1833(b). Nothing in a private contract removes an agency’s own power to investigate.

Does the Speak Out Act cancel the non-disparagement clause in your severance agreement?

Probably not, for two reasons. Section 19403(a) applies only “with respect to a sexual assault dispute or sexual harassment dispute”, and only to a clause “agreed to before the dispute arises”. Where the severance is settling the dispute, the clause sits outside the Act. Where you signed a routine exit package before any such dispute had arisen, the Act can reach it. It also reaches the clause in the contract you signed on your first day.

How long do you get to think about a severance agreement?

If the agreement waives an age discrimination claim, 29 U.S.C. § 626(f)(1) requires at least 21 days to consider it, or at least 45 days where it is part of a group exit program, plus at least 7 days after signing to revoke. In California, a separation agreement carries a right to consult a lawyer and not less than five business days, under Cal. Gov. Code § 12964.5(b)(4).

Can you say how much your severance was?

Not necessarily, even in the states with the strongest laws. Washington voids a clause that stops you discussing conduct you reasonably believed was illegal, but Wash. Rev. Code § 49.44.211(2) expressly preserves a term keeping the settlement amount confidential. The wrongdoing can be discussed; the number is a separate promise.

Sources

• 17 C.F.R. § 240.21F-17(a): no person may impede communication with the SEC (eCFR)
• 18 U.S.C. § 1833(b): trade secret immunity and the employer’s notice duty (Cornell LII)
• 29 U.S.C. § 152(2)-(3): who is outside “employer” and “employee”, including supervisors (Cornell LII)
• 29 U.S.C. § 157: Section 7 rights (Cornell LII)
• 29 U.S.C. § 626(f)(1): knowing and voluntary waiver of age claims, with the 21, 45 and 7 day periods (Cornell LII)
• 26 U.S.C. § 162(q): no deduction for a sexual harassment settlement subject to a nondisclosure agreement (Cornell LII)
• 42 U.S.C. § 19403: Speak Out Act, clauses agreed to before the dispute arises (Cornell LII)
• McLaren Macomb, 372 NLRB No. 58 (21 February 2023): Decision and Order
• EEOC v. Waffle House, Inc., 534 U.S. 279 (2002): Opinion of the Court, official U.S. Reports
• NLRB, “NLRB General Counsel Issues Memo with Guidance to Regions on Severance Agreements”, 22 March 2023
• NLRB Memorandum GC 25-05, Rescission of Certain General Counsel Memoranda, 14 February 2025
• Cal. Gov. Code § 12964.5: required carve-out wording, five business days, and the negotiated settlement exception (California Legislative Information, read 3 September 2026)
• Wash. Rev. Code § 49.44.211: prohibited nondisclosure and nondisparagement provisions (Washington State Legislature, read 3 September 2026)
• N.Y. Gen. Oblig. Law § 5-336: confidentiality only where it is the complainant’s preference (New York State Senate, read 3 September 2026)

Review schedule. The Board position and the state statutes are re-verified every six months; the federal statutes annually. The Verified date above is set at import and is the date the facts here were last checked. General information on US law, not legal advice for a particular situation.