What is non-disparagement in severance?

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Short answer: Non-disparagement is a clause that prohibits you from making negative statements about the company, its employees, products, or business after separation. Most severance agreements include one-way non-disparagement (only you are bound). Best practice is to request mutual non-disparagement so company executives and HR are bound too. Under McLaren Macomb (NLRB 2023), broad non-disparagement clauses may be unenforceable for non-supervisory employees because they chill NLRA Section 7 activity.

What non-disparagement does

A non-disparagement clause prohibits the parties from making statements that could damage the other party's reputation. Typical language:

Employee agrees not to make any disparaging or negative statements, written or oral, about Company, its affiliates, officers, directors, employees, products, services, or business practices, to any third party.

The scope is broad. It applies to public statements (social media, news interviews, public reviews) and private statements (conversations with former colleagues, references for industry contacts, comments at industry events).

Violations can trigger:

Liquidated damages (specific dollar penalties spelled out in the agreement)
Forfeiture of unpaid severance installments
Right of the company to sue for breach of contract
Potential clawback of severance already paid

The practical effect is to silence former employees who might otherwise share information about the company's culture, leadership, or business practices.

One-way vs mutual

Most severance agreements include one-way non-disparagement: only the employee is bound. The company can say whatever it wants about the departing employee, including to references, recruiters, journalists, and current employees.

Mutual non-disparagement binds the company too. Standard mutual language:

Company executives, officers, and HR personnel shall not make any disparaging or negative statements about Employee to any third party, including references, prospective employers, recruiters, or in writing.

Mutual non-disparagement protects you from:

Negative back-channel references
Internal communications that portray your departure as for-cause when it wasn't
Statements to journalists or industry contacts that damage your professional reputation
Reputation harm during a politically sensitive layoff

Companies often resist mutual non-disparagement because it limits their flexibility. The standard response: "We can't agree to mutual because we have no control over what individual employees might say." A better counter: "Mutual obligations bind named individuals (CEO, CHRO, your manager) and the company's official communications, not every employee."

The NLRB position

In McLaren Macomb, 372 NLRB No. 58 (2023), the National Labor Relations Board held that overly broad non-disparagement clauses in severance agreements violate the National Labor Relations Act for non-supervisory employees. The reasoning: such clauses chill NLRA Section 7 activity, which includes the right to discuss working conditions, wages, and complaints about the employer.

The decision applies to:

Severance agreements offered to non-supervisory employees
Non-disparagement language broad enough to cover discussions of wages, working conditions, or terms of employment

Supervisory employees (managers, executives) are not protected by Section 7 and are not covered by McLaren Macomb.

Practical implications:

Non-supervisory employees with broad non-disparagement clauses in their severance may have grounds to challenge enforcement
Companies are increasingly drafting around McLaren Macomb by narrowing scope or adding NLRA carve-outs
Even where McLaren Macomb applies, enforcement of the doctrine depends on filing an unfair labor practice charge, which has its own dynamics

How to negotiate non-disparagement

When negotiating non-disparagement:

Request mutual obligation. Specifically: "Company executives, officers, and HR personnel shall not make disparaging statements about Employee."

Limit scope. Narrow what counts as disparagement: "false or misleading statements that damage the other party's reputation." This excludes truthful negative statements that one party might still want to make.

Add exceptions for truthful statements in legal proceedings. Critical carve-out.

Add exceptions for government investigations. Required for whistleblower protections.

Add exceptions for discussions with family, legal counsel, and accountants. Standard.

Add exceptions for ordinary truthful statements about your own work history. You need to be able to describe your role at the company to future employers.

Common exceptions to insist on

A well-drafted non-disparagement clause includes these carve-outs:

Nothing in this section prevents either party from: (i) making truthful statements required by law, subpoena, court order, or government investigation; (ii) responding truthfully to requests from regulatory agencies; (iii) discussing the terms of this Agreement with legal counsel, immediate family, tax advisors, or financial advisors; (iv) describing Employee's role, duties, and tenure to prospective employers in factual terms; (v) engaging in any activity protected by Section 7 of the National Labor Relations Act or other applicable law.

Without these carve-outs, the non-disparagement clause can be used to silence reasonable factual statements, which is overreach.

What to do next

If you want a delivered review of your severance agreement's non-disparagement language, with specific recommendations on mutual scope, NLRB compliance, and carve-out language, we deliver one in 24 hours for $199. See Severance Review.

Sources

McLaren Macomb, 372 NLRB No. 58 (2023)
NLRA Section 7 (29 USC § 157)
SEC Rule 21F-17 (whistleblower protection)

Get your contract reviewed

If you want a delivered review of your specific document with cited authority and counter language, see https://trycounteroffer.com/severance.

Last updated: Sun May 31 2026 00:00:00 GMT+0000 (Coordinated Universal Time)

Counteroffer is a contract analysis service, not a law firm. This page is informational, not legal advice.