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

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

In most cases, no. Under the National Labor Relations Act (NLRA) and recent National Labor Relations Board (NLRB) rulings, overly broad non-disparagement clauses that prevent employees from discussing working conditions, wages, or company culture in public reviews are generally considered unlawful and unenforceable.

Key takeaway: If a contract clause effectively chills your right to engage in 'concerted activity'—which includes discussing your employment experience—it is likely void, regardless of the signature on the document.

The Legal Landscape: Why NDAs Are Losing Their Teeth

For years, employers used non-disparagement clauses as 'gag orders' to prevent former employees from posting negative reviews on platforms like Glassdoor, Indeed, or LinkedIn. However, the legal tide has shifted decisively against this practice.

The NLRB's McLaren Macomb Ruling

In 2023, the NLRB issued a landmark decision in McLaren Macomb. The Board ruled that offering employees severance agreements with broad non-disparagement and confidentiality clauses is unlawful because it interferes with Section 7 rights. Section 7 of the NLRA protects the right of employees to act together for mutual aid or protection, which includes public criticism of an employer's labor practices.

State-Level Protections

Beyond federal law, several states have enacted specific legislation to curb the misuse of NDAs:

• California (Silenced No More Act): Prohibits NDAs that prevent the disclosure of unlawful acts in the workplace, including harassment and discrimination.
• Washington (Silenced No More Act): Similar to California, it restricts the use of NDAs that prevent employees from discussing conduct that they reasonably believe is illegal or discriminatory.
• New York: Has strict limitations on NDAs in settlement agreements involving discrimination or harassment claims.

Action Item: Check your state's labor department website to see if your jurisdiction has a 'Silenced No More' style law, which often provides stronger protections than federal standards.

Criteria for Enforceability

Not all non-disparagement clauses are automatically void. Courts look at the specific language used to determine if the clause is a reasonable protection of trade secrets or an illegal attempt to suppress speech.

Action Item: If you are reviewing a contract, highlight any clause that does not include an explicit carve-out for 'protected concerted activity' or 'whistleblowing.'

What to Do If You Are Threatened with a Lawsuit

If an employer threatens legal action over a public review, do not panic. Most of these threats are 'bluffing' intended to intimidate you into silence. Follow these steps:

1. Document Everything: Keep a record of the review, the contract clause in question, and any communication from the employer.
2. Assess the 'Concerted Activity' Link: Does your review touch upon wages, hours, or working conditions? If yes, you have strong federal protection.
3. Invoke Anti-SLAPP Laws: If you are sued, your attorney can often file an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion. This forces the employer to prove their case immediately or face dismissal and potential liability for your legal fees.
4. Consult Counsel: Never ignore a cease-and-desist letter, but do not assume it is legally binding.

Key takeaway: Employers often rely on the 'chilling effect' of a contract. They know that most employees cannot afford to fight a lawsuit, so they use the threat of litigation to force compliance.

The Role of AI in Contract Review

Navigating the nuances of employment law is complex, but you don't have to do it alone. TermScore uses advanced AI to scan your employment agreements for red-flag clauses, including overly broad non-disparagement and non-compete provisions. By identifying these issues before you sign, TermScore empowers you to negotiate from a position of strength and clarity. Visit our platform to upload your contract and receive an instant, plain-English analysis of your legal risks.