What a Non-Disparagement Clause Can and Can't Stop You From Saying

A non-disparagement clause is one of the more common pieces of a severance agreement, and one of the more misunderstood. It's not the same thing as an NDA, even though the two often appear in the same document and get treated as interchangeable.

Where an NDA is generally about confidential information, a non-disparagement clause is about how you characterize the company or specific individuals afterward, restricting statements that are disparaging, defamatory, or harmful to reputation. The exact wording varies by agreement, and that wording matters enormously, since "disparaging" can be defined narrowly or broadly depending on how the specific clause was drafted.

What this typically does not restrict, in most standard versions, is stating true, factual information about your own experience. There's an important legal distinction between disparagement and simple truth: in most jurisdictions, a true statement isn't legally defamatory, even if it's unflattering to the company. But "most standard versions" isn't a guarantee about your specific agreement, and some non-disparagement clauses are written broadly enough to function more restrictively than that general rule would suggest.

There's also a separate, important protection layered underneath all of this in the United States: the National Labor Relations Act and related law in some jurisdictions protect certain kinds of employee speech about working conditions, and overly broad non-disparagement language has, in some cases, been challenged successfully on those grounds. This is a genuinely complicated area of law that depends heavily on your specific situation and jurisdiction.

None of this is a substitute for actually reading your own clause closely, or having an employment attorney review it before you sign, particularly if you already know you intend to speak publicly about your experience. The cost of that review is almost always smaller than the cost of guessing wrong.