Are non-disparagement clauses in NDAs void under Louisiana labor laws?

Are non-disparagement clauses in NDAs void under Louisiana labor laws?

Non-disparagement clauses are not automatically void under Louisiana state law, but they are increasingly unenforceable under federal labor standards. While Louisiana courts generally uphold private contracts, clauses that infringe upon an employee's Section 7 rights under the National Labor Relations Act (NLRA) are frequently deemed unlawful by the National Labor Relations Board (NLRB).

The Intersection of Louisiana Law and Federal Preemption

Louisiana is a contract-friendly jurisdiction, but it is not immune to federal oversight. When a non-disparagement clause is drafted so broadly that it prevents an employee from exercising their right to engage in "concerted activity," it conflicts with federal law. Because the NLRA preempts conflicting state-level contract enforcement, these clauses often fail in practice.

The Impact of the McLaren Macomb Decision

In 2023, the NLRB issued a landmark decision in McLaren Macomb, which fundamentally changed how non-disparagement clauses are viewed. The Board ruled that offering an employee a severance agreement containing broad non-disparagement and non-disclosure provisions—which effectively silence the employee regarding their working conditions—is a violation of the NLRA.

• Scope: The clause must not be so broad that it covers all communications.
• Subject Matter: It cannot prohibit discussions regarding wages, hours, or workplace safety.
• Target Audience: It cannot prevent employees from speaking to the NLRB, unions, or the media.

Key takeaway: If your non-disparagement clause effectively prevents you from discussing your employment terms or criticizing your employer's labor practices, it is likely unenforceable regardless of Louisiana state law.

Action Item: Review your current NDA for "catch-all" language that prohibits any negative commentary. If the language is not limited to trade secrets or proprietary business information, it is a red flag.

Criteria for Enforceability

For a non-disparagement clause to stand a chance of being enforceable in a Louisiana court, it must be narrowly tailored. Courts look for specific limitations that protect legitimate business interests without stripping the employee of their fundamental rights.

Red Flags in Your Contract

When analyzing your agreement, look for these specific indicators of an overreaching clause:

• Vague Definitions: Terms like "disparaging" or "negative" without clear definitions.
• Lack of Carve-outs: No explicit statement that the clause does not interfere with NLRA Section 7 rights.
• Broad Application: Language that applies to "all matters related to the company" rather than specific proprietary data.

Action Item: If you find these red flags, consult with a legal professional to determine if the clause can be severed or if it invalidates the entire agreement.

Steps to Assess Your Non-Disparagement Clause

If you are concerned about the validity of a clause in your contract, follow this systematic approach to evaluate your risk:

1. Identify the Purpose: Determine if the clause is intended to protect trade secrets or to silence criticism of management.
2. Check for Savings Clauses: Look for language stating that the agreement does not prohibit reporting violations to government agencies.
3. Compare Against NLRB Guidance: Ensure the language does not chill your right to discuss working conditions with colleagues.
4. Seek Legal Review: Use AI-powered analysis tools or legal counsel to compare your clause against current case law.

Action Item: Do not sign an agreement containing a non-disparagement clause without requesting a "carve-out" that explicitly protects your right to discuss employment terms.

Why Precision Matters

In the modern legal environment, "boilerplate" language is a liability. Employers who include overly broad non-disparagement clauses risk not only the invalidation of those specific provisions but also potential unfair labor practice charges. For employees, understanding these nuances is the difference between being silenced and maintaining your legal rights.

TermScore provides an automated, AI-driven analysis of your contracts to identify overreaching non-disparagement clauses and other restrictive covenants. By uploading your document, you can instantly flag language that conflicts with current labor standards, ensuring you understand exactly what you are signing before it is too late.