Are non-disparagement clauses in employment NDAs enforceable against negative Glassdoor reviews?

Are non-disparagement clauses enforceable against negative Glassdoor reviews?

In most cases, non-disparagement clauses are unenforceable against negative Glassdoor reviews. The National Labor Relations Board (NLRB) consistently holds that employees have a protected right to discuss their working conditions. Clauses that attempt to silence this discourse are often deemed unlawful, as they interfere with Section 7 rights under the National Labor Relations Act (NLRA).

The Legal Landscape: NLRB vs. Employer Contracts

The enforceability of these clauses hinges on whether the speech constitutes "concerted activity." The NLRB defines this as activity engaged in by two or more employees for the purpose of collective bargaining or other mutual aid or protection. Even if you post a review alone, the NLRB often views it as a continuation of workplace discussions regarding wages, hours, and working conditions.

Key Factors Influencing Enforceability

• Scope of the Clause: If the language is so broad that it prohibits any negative comment about the company, it is likely unenforceable.
• Protected Concerted Activity: If the review addresses pay, safety, management style, or discrimination, it is highly likely to be protected.
• Malice vs. Truth: Statements that are demonstrably false and made with "actual malice" (knowing they are false) are not protected by the NLRA.

Key takeaway: An NDA cannot legally strip you of your federal right to engage in protected concerted activity. If a clause is written to prevent you from discussing your employment experience, it is likely overbroad and legally void.

Defamation: The Employer's Last Resort

While an employer may fail to enforce a non-disparagement clause, they may pivot to a defamation lawsuit. However, winning a defamation case is significantly harder than enforcing a contract. To succeed, an employer must prove:

1. The statement was a false statement of fact (not an opinion).
2. The statement was published to a third party.
3. The statement caused actual, measurable financial damage to the company.
4. The speaker acted with negligence or malice.

Action Item: If you are concerned about a review, ensure your statements are framed as personal opinions or subjective experiences rather than objective, verifiable facts. Avoid making specific claims about revenue or proprietary data that could be proven false.

Jurisdictional Nuances

State laws are increasingly hostile toward "gag clauses." For example, California’s Silenced No More Act (SB 331) severely limits the ability of employers to include non-disparagement provisions in settlement or separation agreements. Always check your state's specific labor code, as it may provide broader protections than federal law.

Checklist for Reviewing Your NDA

• Does the clause explicitly exclude "protected concerted activity"?
• Is the definition of "disparagement" clearly limited to trade secrets or proprietary information?
• Does the agreement include a "savings clause" that acknowledges your rights under the NLRA?

Action Item: Review your employment contract for a "savings clause." If it is missing, the contract may be poorly drafted, increasing the likelihood that the entire non-disparagement section is unenforceable.

How TermScore Can Help

Navigating the intersection of contract law and federal labor rights is complex. TermScore uses advanced AI to analyze your employment agreements, identifying overbroad non-disparagement clauses and flagging language that may violate your rights under the NLRA. By uploading your contract to TermScore, you can instantly see if your NDA contains restrictive language that courts are likely to strike down, giving you the clarity you need to speak your mind with confidence.