Does a non-disparagement clause in an employment NDA prevent honest Glassdoor reviews?

Does a non-disparagement clause prevent honest Glassdoor reviews?

No, a non-disparagement clause cannot legally prevent you from posting truthful, honest reviews about your working conditions. Under Section 7 of the National Labor Relations Act (NLRA), employees have a protected right to engage in 'concerted activity,' which includes discussing wages, hours, and working conditions with others.

Key takeaway: The National Labor Relations Board (NLRB) has consistently ruled that non-disparagement clauses that interfere with an employee's right to discuss their employment are unlawful and unenforceable.

The Legal Landscape: NLRB vs. Private Contracts

The conflict between private NDAs and federal labor law reached a tipping point in the 2023 McLaren Macomb decision. The NLRB ruled that offering employees severance agreements with broad non-disparagement and non-disclosure provisions is unlawful because it conditions benefits on the waiver of statutory rights.

What Constitutes Protected Activity?

Not every complaint is protected. To be safe, your review should focus on:

• Workplace safety concerns.
• Compensation and benefits transparency.
• Management practices that affect your ability to perform your job.
• General workplace culture and environment.

Action Item: Before posting, ensure your review focuses on objective facts regarding your employment experience rather than personal attacks, which are not protected under the NLRA.

Red Flags in Your NDA

When reviewing your contract, look for language that attempts to silence you entirely. If your contract contains the following, it is likely overreaching:

How to Evaluate Your Risk

1. Check for Carve-outs: Does the contract explicitly state that it does not limit your rights under the NLRA?
2. Assess the Context: Was the clause part of a severance package? If so, the McLaren Macomb precedent is highly relevant.
3. Verify Truthfulness: Defamation law still applies. If your review contains knowingly false statements, you are not protected by the NLRA.

Key takeaway: A clause that does not include a 'savings clause'—language stating that the agreement does not prohibit protected concerted activity—is a major red flag and likely unenforceable.

State-Specific Protections

Beyond federal law, several states have enacted legislation to curb the use of restrictive NDAs. For example, California’s 'Silenced No More Act' (SB 331) prohibits employers from including non-disparagement clauses in settlement or separation agreements that prevent employees from disclosing unlawful acts in the workplace.

• California: Broadly restricts NDAs that prevent disclosure of workplace harassment or discrimination.
• Washington: Limits the enforceability of NDAs regarding sexual harassment and discrimination.
• New York: Requires that NDAs be written in plain English and not prevent the disclosure of factual information regarding discrimination.

Action Item: Research your specific state’s labor code. Many states now require that any restriction on speech must be narrowly tailored to protect legitimate trade secrets, not to hide general workplace grievances.

Practical Steps for Employees

If you are worried about a potential lawsuit, follow these steps to mitigate risk:

• Stick to the Facts: Avoid hyperbole. If you say 'the manager is a thief,' you risk a defamation claim. If you say 'the manager failed to pay overtime as required by law,' you are stating a protected grievance.
• Maintain Documentation: Keep records of the events you are describing in your review.
• Review the Entire Agreement: Sometimes, the non-disparagement clause is tied to a clawback provision in a severance package. Ensure you understand the financial risk before posting.

Analyze Your Contracts with TermScore

Navigating the nuances of non-disparagement clauses can be daunting, but you don't have to do it alone. TermScore uses advanced AI to instantly scan your employment agreements, identifying overly broad language and flagging clauses that may violate your rights under the NLRA or state law. Upload your contract to TermScore today to get a clear, plain-English breakdown of your risks before you hit 'publish' on that review.