Non-Disparagement Clauses Explained in Mintz Podcast

Non-disparagement clauses are the workplace equivalent of that friend who says, “I’m not saying you can’t talk,
I’m just saying… maybe don’t set me on fire on LinkedIn.”

They show up everywhereoffer letters, executive employment agreements, settlement deals, and especially severance packages
often written with the confidence of a superhero cape and the subtlety of a marching band. The problem is: in the United States,
the law has opinions. Strong ones. And if a non-disparagement clause is drafted like a total gag order, it can boomerang into
a compliance headache (or a legal fight) faster than you can say, “Please sign on page 47.”

In the Mintz podcast episode (“Disparage Me Not”), the hosts dig into what these clauses are meant to do,
where they tend to go wrong, and why enforcement is rarely as clean as the clause makes it sound. This article builds on that
frameworkthen adds the bigger U.S. legal context, real examples, and practical drafting and negotiating tips in plain English.
(Not legal advice. Just legal-adjacent clarity with fewer Latin phrases.)

What the Mintz Podcast Highlights: Useful, Realistic, and (Blessedly) Practical

The Mintz “Disparage Me Not” conversation is refreshingly grounded: a non-disparagement clause is not a magical “bad press shield.”
It’s a contract term designed to reduce reputational harm by limiting negative statements. But the podcast also stresses the real
world: the broader you draft it, the harder it becomes to enforceand the more likely you run into legal limits.

Three takeaways worth stealing (ethically) from the Mintz approach:

• Know what you’re regulating. “Disparagement” is not the same thing as “defamation,” and mixing them up can
  create confusion, overreach, and litigation risk.
• Expect enforcement friction. Even if a clause looks tough on paper, practical enforcement can be messy:
  What counts as “negative”? Who decides? What about a truthful statement that still hurts feelings?
• Draft with legal boundaries in mind. Particularly in employment settings, non-disparagement can collide with
  protected rightsespecially when it blocks employees from discussing working conditions, cooperating with government agencies,
  or reporting unlawful conduct.

Non-Disparagement 101: What It Is (and What It Isn’t)

A simple definition

A non-disparagement clause is a promise not to make statements that would harm the reputation of another party.
In employment, the “other party” is usually the employer (and often its executives, affiliates, and “anyone we’ve ever waved at in
the hallway,” depending on how ambitious the drafter felt).

Disparagement vs. defamation (not twins, not even cousins)

Defamation generally involves a false statement of fact that harms someone’s reputation and meets the legal standard
for liability. Disparagement is usually broader: it can include negative opinions, harsh criticism, or “statements
that could harm the image” of a companyeven if those statements are truthful or clearly opinion.

Translation: a defamation claim is a legal cause of action with specific elements. A non-disparagement clause is a contract term
that can be written too broadly (and then becomes hard to defend).

Where you’ll see these clauses

• Severance agreements (the most common hotspot)
• Settlement agreements (especially employment disputes)
• Executive and founder arrangements (where reputational stakes are high)
• Vendor/partner contracts (think: “Please don’t trash our brand publicly”)
• Influencer/marketing deals (where public statements are literally the product)

Why Employers Want Non-Disparagementand Why Employees Get Nervous

The employer’s wishlist

• Brand protection: limiting viral “this place is a dumpster fire” posts
• Investor/customer confidence: reducing reputational hits during sensitive transitions
• Clean exits: avoiding a public feud after a termination or layoff
• Litigation control: reducing statements that escalate disputes

The employee’s reality check

• Ambiguity: “disparage” can be interpreted like a blank check
• Fear factor: broad clauses can chill legitimate speech about working conditions
• Career risk: employees may worry about references, networking, and future credibility
• Legal limits: some restrictions can be unlawful or unenforceable

The tension is predictable: employers want a quieter exit; employees want to retain basic rights to talk about their experience,
especially if it involves workplace issues or unlawful conduct.

The Big Legal Speed Bumps in the United States

1) The NLRA: You can’t sign away protected concerted activity

Here’s the part many people miss: the National Labor Relations Act (NLRA) applies in union and non-union workplaces.
Section 7 protects many employees’ right to act together (or on behalf of coworkers) about wages, hours, and working conditions
including discussing workplace issues with coworkers or third parties.

That matters because a broad non-disparagement clause can function like a “don’t talk about work problems” rule, especially when it
bans statements that could “harm the image” of the employer. The National Labor Relations Board’s decision in
McLaren Macomb made waves by finding that offering a severance agreement with sweeping confidentiality and non-disparagement
provisions can unlawfully chill Section 7 rights.

The practical takeaway: if a clause could reasonably be read to stop employees from criticizing working conditions, discussing labor issues,
or cooperating with the NLRB, it’s living dangerously. And “non-disparagement” that covers basically all negative speech about the company
is the legal equivalent of juggling knives while running.

2) NLRB General Counsel guidance: severance isn’t banned, but overbreadth is a problem

After McLaren Macomb, NLRB General Counsel guidance emphasized that severance agreements themselves are not prohibited, but
overly broad provisionsincluding certain non-disparagement and confidentiality clausescan violate the NLRA.
The message is consistent: employers need narrow language and meaningful carve-outs, not a “forever silence” provision.

Bottom line: a well-drafted clause should avoid restricting speech about working conditions, protected activity, or cooperation with the NLRB.
If your clause accidentally reads like “never say anything negative about us, anywhere, to anyone, forever,” it’s a red flag.

3) State “Silenced No More” and anti-gag laws

State law is another major speed bumpand it’s not a small one. Several states limit agreements that restrict employees from discussing
unlawful conduct. California’s SB 331 (“Silenced No More Act”) is a prominent example: it restricts certain nondisclosure and
non-disparagement provisions and requires specific protective language in covered contexts so employees can still discuss unlawful acts
in the workplace.

Washington has similar guardrails (codified in RCW 49.44.211), limiting nondisclosure and nondisparagement provisions that
would prohibit employees from discussing conduct they reasonably believe to be illegal harassment, discrimination, retaliation, wage-and-hour
violations, or sexual assault.

Practical drafting implication: even if a clause passes federal muster, state law may require a carve-out or make certain restrictions void.
Multi-state employers should not treat “one template to rule them all” as a strategy. It’s more like a hobby. A risky one.

4) The federal Speak Out Act: a targeted limit with a big cultural impact

The Speak Out Act reflects a policy pushespecially after #MeTooto limit the use of pre-dispute nondisclosure and non-disparagement
clauses that would silence employees regarding sexual assault or sexual harassment disputes. It’s not a universal ban on all non-disparagement clauses,
but it is a clear sign that “silence provisions” get extra scrutiny in certain contexts.

Practical takeaway: if your clause touches sexual harassment or sexual assault matters, assume higher scrutiny and double-check enforceability.
If you’re negotiating one, ask: “Does this try to silence me about something the law says I shouldn’t be silenced about?”

5) Whistleblower and government-contact carve-outs

Even when a non-disparagement clause is generally lawful, it should not be drafted to interfere with:

• reporting possible violations of law to government agencies
• participating in investigations
• providing truthful testimony or responding to legal process
• exercising legally protected rights (including NLRA rights)

Many employers include these carve-outs explicitly. If they don’t, employees often request themand smart employers usually agree,
because the alternative is inviting enforceability problems and reputational blowback.

How to Draft a Non-Disparagement Clause That Doesn’t Self-Destruct

Step 1: Define “disparagement” like you mean it

“Disparagement” shouldn’t be a vague cloud of “anything that makes us sad.” Better language typically:

• focuses on knowingly false statements of fact, or statements made with reckless disregard for truth
• avoids banning truthful statements about workplace conditions
• limits the clause to public statements (rather than private conversations with coworkers, lawyers, or agencies)

Step 2: Narrow the scope (people, platforms, and time)

Overbreadth is the #1 reason these clauses get into trouble. Narrowing can include:

• Who: the company as an entity, rather than every affiliate, investor, and “anyone who once had a company badge”
• Where: public statements only (and sometimes excluding legal filings, agency communications, and testimony)
• When: a reasonable duration instead of “forever until the sun burns out”

Step 3: Add real carve-outs (not decorative ones)

Good carve-outs are specific and readable. Common carve-outs protect:

• NLRA/Section 7 rights and protected concerted activity
• communications with government agencies and participation in investigations
• truthful testimony or statements required by law
• communications with attorneys, tax advisors, or immediate family
• statements about unlawful conduct (where state law requires it)

Step 4: Keep remedies sane

Threatening catastrophic penalties can make a clause feel coercive and harder to enforce. Reasonable remedies are more defensible and
often more effective. If a clause is meant to deter reputational harm, it should be proportionateespecially in employment settings.

If You’re Asked to Sign One: A Practical Checklist

If a non-disparagement clause lands in your inbox, here’s a negotiation checklist that works in the real world:

• Ask what “disparagement” means. If it’s undefined, it’s a risk magnet.
• Request mutuality. If you can’t disparage them, can leadership disparage you? (Fair is trendy.)
• Limit the scope. Public statements only, reasonable time period, clear covered parties.
• Protect your rights. Carve-outs for government agencies, legal testimony, and protected workplace speech.
• Protect your career. Make sure normal job searches and reference discussions won’t trigger a breach claim.
• Get clarity on enforcement. Who decides a breach occurred? What’s the process? What’s the remedy?

In severance negotiations, employees often trade narrow revisions for speed and closure. The key is knowing which revisions are
“nice-to-have” and which are “this clause is a legal landmine” priorities.

Examples: From Too-Broad to Better

Example of a risky, overly broad clause

Why it’s risky: it can sweep in protected speech about working conditions, discussions with coworkers, and communications with agencies.
It also tries to bar private speech broadly, which is where many legal problems start.

Example of a more defensible approach (general illustration)

Notice what changed: narrower focus, clearer standard, and meaningful carve-outs.

FAQ: The Questions People Actually Ask

Can a non-disparagement clause stop me from posting a Glassdoor review?

It depends on the wording and the context. A clause targeting knowingly false statements may be treated differently than one that bans any
negative opinion. In employment contexts, overly broad restrictions can collide with protected rights to discuss workplace conditions.

Can my employer bar me from talking to the NLRB or cooperating in an investigation?

A well-drafted agreement should not attempt that. Agreements that interfere with protected rights or agency communications can become
unenforceable and legally risky for the employer.

Is “non-disparagement” basically the same as “confidentiality”?

Nope. Confidentiality usually addresses protected information (like trade secrets, nonpublic business data, or settlement terms).
Non-disparagement addresses negative statements. They can overlap in practice, but they’re not the sameand they trigger different legal concerns.

Real-World Scenarios and Lessons (Extra )

“Experience” with non-disparagement clauses often looks less like courtroom drama and more like everyday friction: a clause written too broadly,
an employee who’s trying to move on, and a company that wants a clean exit without triggering a public-relations migraine. Here are patterns that
show up repeatedly in real workplaces and negotiationsno personal war stories required.

Scenario 1: The severance agreement that accidentally bans “talking about wages”

A common severance template says the employee can’t make statements that “could harm the image of the company,” and it defines “company” as
basically everyone who has ever had a corporate email address. The employee reads that and thinks: “So… can I tell my former coworkers what
severance I got? Can I complain about the layoff process? Can I warn someone about understaffing?” If the clause is broad enough, the answer looks
like “no,” even though U.S. labor law protects many employees’ ability to discuss wages and working conditions with coworkers. The fix is usually
not to delete the clause entirely, but to tighten it: focus on knowingly false factual claims, add carve-outs for protected activity, and limit the
scope to public statements that are truly reputational attacks rather than workplace conversations.

Scenario 2: The “truth hurts” problem

Some clauses treat any negative statement as a breachtruthful or not. That creates two headaches. First, employees may refuse to sign because they
don’t want to risk liability for saying something true like, “My team was chronically understaffed.” Second, enforcement becomes awkward: a company
suing over a truthful statement can look like it’s punishing honesty, which can turn a small issue into a much larger reputational event (the very
thing the clause was trying to prevent). Drafting that distinguishes between truthful statements, opinion, and knowingly false statements tends to
reduce both legal and PR risk.

Scenario 3: The social media “quote tweet” trap

Modern reputational harm doesn’t always come from a press release. It comes from a screenshot, a subtweet, or a sarcastic TikTok caption. Broad
clauses try to cover all of this by saying “any statement in any forum.” But broad language creates enforceability risk, and it can chill protected
speech. A more workable approach is to define what the company actually fears: false factual allegations presented as truth, accusations of illegal
conduct made with reckless disregard, or targeted attacks on products/services. Then you narrow your clause to those issues and carve out what law
protectsagency cooperation, testimony, and protected workplace discussions.

Scenario 4: The multi-state employer who learns state law is not a vibe

An employer uses one national severance form. A departing employee in California or Washington requests specific language allowing discussion of
unlawful workplace conduct because state law restricts certain nondisclosure/non-disparagement provisions. Meanwhile, HR is thinking, “But we’ve used
this template everywhere for years.” That’s exactly the point: state restrictions have evolved, and templates age like milk. The practical “experienced”
move is to treat non-disparagement as modularuse jurisdiction-specific addenda, consult local counsel for high-risk terminations, and avoid pretending
that a single form can comply with every state’s policy choices forever.

Scenario 5: The clause that works best because it’s… boring

The most effective non-disparagement language is often the least dramatic. It’s mutual. It’s narrow. It has reasonable carve-outs. And it reads like a
normal human wrote it with a normal human brain. When both sides can understand it, compliance improves. When it’s overly aggressive, people either
don’t signor they sign and later assume it’s unenforceable. In other words: if you want the clause to work, draft it like you actually expect it to be
used, not like you’re writing a villain monologue.

Conclusion

The Mintz podcast gets to the heart of the issue: non-disparagement clauses are tools, not muzzlesand like any tool, they work best when used with
precision. In the United States, the legal limits are real, especially in employment settings where protected rights (like Section 7 activity under the NLRA)
and state “Silenced No More” rules can restrict how far a clause can go.

Whether you’re drafting, negotiating, or signing one, the smart strategy is consistent:
keep it narrow, define your terms, add meaningful carve-outs, and avoid writing a clause that accidentally prohibits lawful speech about workplace conditions.
The goal is reputational protection without legal self-sabotageand yes, that is absolutely possible.

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