Is an NDA that prohibits negative feedback on Glassdoor enforceable?

Is an NDA that prohibits negative feedback on Glassdoor enforceable?

In the United States, non-disparagement clauses that broadly prohibit employees from posting negative feedback on platforms like Glassdoor are generally unenforceable. Under the National Labor Relations Act (NLRA), employees have a protected right to discuss their wages, hours, and working conditions. Recent National Labor Relations Board (NLRB) rulings have clarified that offering an agreement with overly broad non-disparagement terms as a condition of employment or severance is a violation of federal law.

The Legal Landscape: Why Broad NDAs Fail

The primary reason these clauses fail is the conflict between private contract law and federal labor law. The NLRB maintains that employees must be able to engage in "concerted activity"—the right to act together to improve working conditions. When an employer forces an employee to sign away their right to criticize the company, they are effectively chilling that protected activity.

The NLRB's Stance on Severance Agreements

In the 2023 decision McLaren Macomb, the NLRB ruled that severance agreements containing overly broad non-disparagement and non-disclosure provisions are unlawful. The Board determined that these clauses interfere with, restrain, or coerce employees in the exercise of their Section 7 rights under the NLRA.

• Section 7 Rights: Employees have the right to discuss their employment experience with coworkers and the public.
• Coercion: Offering a severance package conditioned on the waiver of these rights is considered inherently coercive.
• Scope: The ruling applies to both current and former employees, meaning you cannot be forced to waive your right to speak out about your former employer.

Key takeaway: If your severance agreement includes a blanket ban on "disparaging" the company, it is likely legally invalid under current NLRB guidance, regardless of whether you signed it.

Action Item: Review your existing severance or employment contract for a "Savings Clause" or "Carve-out" that explicitly states the agreement does not prohibit you from engaging in activities protected by the NLRA.

State-Level Protections and Anti-SLAPP Laws

Beyond federal labor law, many states have enacted specific legislation to protect employees from retaliatory litigation. Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws are designed to prevent companies from using the court system to silence critics.

The Role of Truthfulness

While you are protected from broad non-disparagement clauses, you are not protected from defamation. The law distinguishes between a subjective, negative opinion and a false statement of fact.

1. Opinion: "Management is disorganized and the culture is toxic." (Protected)
2. Fact: "The company is stealing money from employee 401(k) accounts." (If false, this is defamation and not protected by the NLRA).

Action Item: Before posting, ensure your review focuses on your personal experience and subjective opinion rather than making specific, verifiable claims of criminal activity unless you have documented proof.

How to Evaluate Your Contract

When reviewing a contract, look for these red flags that suggest an employer is overreaching:

• "All-Encompassing" Language: Phrases like "any and all comments" or "any form of communication."
• Lack of Temporal Limits: Clauses that last "in perpetuity" without an end date.
• Lack of Geographic Limits: Clauses that apply globally, regardless of where you work or reside.
• No Carve-outs: The absence of language acknowledging your rights under the NLRA or other labor laws.

Key takeaway: A contract that lacks a "carve-out" for protected activity is a significant red flag. Always seek legal counsel before assuming a clause is enforceable.

Action Item: If you are currently negotiating an agreement, request that the non-disparagement clause be limited to "confidential proprietary information" rather than "any negative statement."

Conclusion

While employers will continue to include non-disparagement clauses in contracts to discourage negative feedback, the legal tide has turned against them. Federal labor protections and state-level anti-SLAPP laws provide a robust shield for employees who share honest, non-defamatory feedback about their workplace. Understanding these rights is the first step in protecting your professional reputation and your right to free speech.

TermScore can automatically analyze your employment agreements to identify overly broad non-disparagement clauses and other restrictive covenants, providing you with a clear breakdown of your legal risks before you sign.