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

Are non-disparagement clauses enforceable against public reviews?

Generally, no. Federal labor laws and recent legislation like the Speak Out Act significantly limit the enforceability of non-disparagement clauses. If a clause prevents you from discussing workplace conditions, sexual harassment, or illegal activities, it is likely unenforceable in court, regardless of what the contract states.

The Legal Landscape: Why Clauses Often Fail

Employers frequently include broad non-disparagement language in NDAs to protect their brand reputation. However, courts and federal agencies increasingly view these as "chilling" protected speech. The enforceability of these clauses typically hinges on three primary legal frameworks.

1. The National Labor Relations Act (NLRA)

The National Labor Relations Board (NLRB) maintains that employees have a protected right to engage in "concerted activity." This includes discussing wages, hours, and working conditions with coworkers or the public. If a non-disparagement clause is so broad that it could be interpreted as prohibiting these discussions, the NLRB considers the clause unlawful.

Key takeaway: If your NDA prohibits you from discussing your salary or working conditions, that specific provision is likely invalid under Section 7 of the NLRA.

2. The Speak Out Act

Signed into law in 2022, the Speak Out Act renders non-disparagement and non-disclosure clauses unenforceable if they were signed before a dispute regarding sexual assault or sexual harassment arose. This prevents employers from using NDAs to bury systemic abuse.

3. State-Level Anti-SLAPP Laws

Many states have enacted Strategic Lawsuits Against Public Participation (Anti-SLAPP) statutes. These laws allow defendants to quickly dismiss lawsuits filed by employers intended to silence criticism. If an employer sues you for a truthful review, an Anti-SLAPP motion can force the employer to pay your legal fees.

Criteria for Unenforceability

Not every clause is automatically void. Courts look for specific "red flags" that indicate a clause is overreaching. If your contract contains these, it is highly vulnerable to being struck down:

• Lack of Temporal Scope: A clause that lasts "in perpetuity" is often viewed as unreasonable.
• Lack of Geographic Scope: If the restriction applies globally without a legitimate business interest, it may be deemed a restraint on trade.
• Vagueness: Terms like "anything that could be construed as negative" are often too broad to be enforceable.
• Conflict with Public Policy: Any clause that prevents reporting illegal activity to government agencies (like the EEOC or OSHA) is void as a matter of public policy.

Comparison: Enforceable vs. Unenforceable Clauses

Action Item: Review your NDA for a "carve-out" clause. A well-drafted contract should explicitly state that the agreement does not prohibit you from reporting illegal activity or discussing working conditions protected by law.

What to Do If You Are Threatened

If an employer threatens legal action over a public review, do not panic. Most threats are designed to intimidate rather than initiate a costly legal battle. Follow these steps:

1. Document Everything: Save screenshots of the review and any correspondence from the employer.
2. Verify Truthfulness: Ensure your review is based on factual experiences. Truth is an absolute defense against defamation claims.
3. Check the Contract: Look for a "Severability Clause." This allows a court to strike down the illegal part of your contract while keeping the rest intact.
4. Consult Counsel: If the employer sends a formal cease-and-desist letter, contact an employment attorney immediately to discuss an Anti-SLAPP response.

Key takeaway: Never delete a truthful review simply because of a threatening email. Doing so may weaken your position if you later need to prove the employer is engaging in illegal intimidation tactics.

Leveraging Technology for Contract Clarity

Navigating the fine print of employment agreements is complex, but you don't have to do it alone. TermScore uses advanced AI to instantly scan your contracts, identifying overbroad non-disparagement clauses and flagging potential legal risks before you sign. By providing a clear, plain-English breakdown of your obligations, TermScore ensures you understand exactly what you are agreeing to, empowering you to negotiate with confidence.