Non-Disparagement Clause Guide (2026): What It Means and When to Use One

A non-disparagement clause is a promise, usually written into a severance, settlement, or employment agreement, that neither side will make negative public statements about the other after the relationship ends. It sounds simple until someone leaves a candid Glassdoor review, and both sides find out how much the clause actually covers — and, increasingly, how much the law now lets it cover. This guide explains what the clause does, where it shows up, a real recent limit on how broad it can legally be, and how to negotiate one from either side of the table.

Quick Answer

• A non-disparagement clause restricts negative public statements about the other party, typically after employment or a business relationship ends.
• It's distinct from a non-solicitation clause (which restricts poaching people or clients) and a non-compete clause (which restricts working for a competitor).
• In the US, a 2023 NLRB ruling significantly limits how broad a non-disparagement clause can be in severance agreements offered to most private-sector employees.
• Several US states have passed "Silenced No More" style laws restricting non-disparagement clauses specifically in harassment and discrimination settlements — check your state.
• Truthful statements, required legal disclosures, and cooperation with government investigations are almost never something a non-disparagement clause can actually silence.

What Is a Non-Disparagement Clause?

A non-disparagement clause obligates both parties (or, in some agreements, just one) not to make statements that damage the other's reputation, business, products, or character. In an employment context, it typically appears in a severance or settlement agreement and restricts a departing employee from badmouthing the company publicly — on social media, in reviews, or to press — in exchange for something of value, often severance pay. In a business context, it can appear in a partnership dissolution or business sale agreement, where both former partners agree not to disparage each other to shared clients or the industry at large.

The clause is a private contractual promise, not a gag order imposed by a court — its only enforcement mechanism is whatever the agreement specifies, usually a claim for breach of contract and, in some cases, a clawback of severance already paid.

Where Non-Disparagement Clauses Show Up

• Severance agreements — see our severance agreement template guide — where it's often paired with a release of legal claims.
• Settlement agreements, particularly for employment disputes, harassment or discrimination claims, and general business litigation.
• Employment agreements, sometimes included from day one rather than only at exit.
• Business partnership dissolution or sale agreements — see our partnership dissolution guide — protecting both sides' reputations with shared clients and vendors after the split.

Non-Disparagement vs. Non-Solicitation vs. Non-Compete

These three clauses get lumped together as "the restrictive stuff in my contract," but they restrict entirely different behavior. A non-disparagement clause restricts what you say about the other party. A **non-solicitation clause** restricts poaching employees or clients after you leave — not what you say, but who you contact. A **non-compete clause** restricts where you can work at all, typically barring a role at a direct competitor for a defined period. An agreement can include one, two, or all three — read each separately, since agreeing to one doesn't imply the others, and negotiating one down doesn't touch the others.

Are Non-Disparagement Clauses Enforceable? Recent Limits

Enforceability depends heavily on jurisdiction and exactly who the agreement covers, and this is an area where the law has moved meaningfully in the last few years — don't assume an older template reflects current limits.

In the US, the National Labor Relations Board's decision in McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023), held that broad non-disparagement and confidentiality clauses in severance agreements can violate Section 7 of the National Labor Relations Act when they restrict rights most private-sector, non-supervisory employees have — like discussing wages, working conditions, or the circumstances of their departure with coworkers or a union. A clause written broadly enough to cover any of that, not just clearly defamatory statements, risks being unenforceable, and offering it can expose the employer to a separate unfair labor practice claim.

Separately, several US states have passed "Silenced No More"-style laws — California's SB 331 is a commonly cited example — that restrict non-disparagement and non-disclosure provisions specifically in settlements involving harassment, discrimination, or related claims, generally preserving an employee's right to discuss the underlying facts even after signing. Requirements and coverage differ by state and change over time, so check current law in the relevant jurisdiction rather than relying on a prior year's rule.

What almost never gets silenced by a properly drafted clause anywhere: truthful statements made in response to a legal requirement (subpoena, court order), required regulatory disclosures, and cooperation with a government agency investigation. A clause attempting to block those is on especially weak legal ground.

Sample Clause Language

NON-DISPARAGEMENT

Each party agrees not to make, publish, or cause to be made or published, any
statement that disparages the other party's business, reputation, products,
or services. This clause does not restrict either party from: (a) making
truthful statements as required by law, subpoena, or valid legal process;
(b) filing a charge or complaint with, or participating in an investigation
conducted by, any government agency; or (c) discussing the terms and
conditions of employment as protected under applicable labor law.

Note the carve-outs in the sample above — they exist precisely because an unqualified, blanket non-disparagement clause is the version most likely to run into the NLRB and state-law limits described above.

How to Negotiate or Push Back on a Non-Disparagement Clause

If you're the one being asked to sign: ask whether it's mutual (the company agrees not to disparage you too — often left out of the first draft, and reasonable to request), confirm it includes carve-outs for legal compliance and truthful statements about your own experience, and understand it doesn't retroactively make a bad reference the company already gave you disappear.

If you're drafting one for your business: keep it mutual and specific, avoid language broad enough to arguably cover routine workplace complaints protected under labor law, and don't rely on a template you haven't checked against current NLRB guidance and your state's specific settlement-related statutes — this is one of the faster-moving corners of employment law right now.

FAQ

Can I still leave a truthful negative review after signing a non-disparagement clause?

This depends entirely on how the specific clause is written and which jurisdiction's law applies — some clauses are drafted broadly enough to restrict even truthful negative statements, while recent legal limits (above) push back on how far that can go for many employees. Read your specific agreement, and when in doubt, ask an employment attorney before posting anything.

Is a non-disparagement clause the same as an NDA?

No. An NDA (confidentiality agreement) restricts sharing confidential information; a non-disparagement clause restricts negative public statements. An agreement often includes both, but they cover different conduct and can have different exceptions.

Can a company enforce a non-disparagement clause against a former employee for a bad Glassdoor review?

It's possible, but increasingly contested — particularly if the review discusses wages, working conditions, or other topics protected under labor law, or if the clause itself is overly broad under recent NLRB standards. Enforcement also requires the company to actually pursue a breach-of-contract claim, which many choose not to do for a single review.

Does a non-disparagement clause expire?

Only if the agreement says so. Some clauses are written to apply indefinitely; others specify a term (one year, two years). Read the duration language carefully — "indefinitely" is common and worth negotiating if you have leverage to do so.

What happens if I violate a non-disparagement clause?

Typically, the other party can pursue a breach-of-contract claim, and if the clause was tied to severance pay, some agreements include a clawback provision requiring repayment. The specific consequence depends entirely on what your signed agreement says.

This guide is general information, not legal advice. Non-disparagement clause enforceability depends on your jurisdiction, the specific parties involved, and rapidly evolving labor and employment law — consult a qualified employment attorney before signing or drafting one.