Non-disparagement clauses in employment agreements and severance packages have become common. When an employee departs, particularly involuntarily, an employer often offers a severance package contingent on signing a release of claims and a promise not to make negative statements about the company.[i] These clauses are marketed as a way to protect an organization’s reputation. However, they can also suppress legitimate speech, including discussions of workplace safety, or public criticism of government conduct. From a contract perspective, a severance or separation agreement is a bargained-for exchange where the employer offers payment or benefits in return for a release of claims, confidentiality, and sometimes a non-disparagement promise. But employment relationships are rarely between equals, and the threat of financial loss gives employers leverage to demand restrictive covenants from employees who may not fully appreciate the speech they are surrendering.[ii]
Florida has drawn a bright line for public employers. Florida Statute section 215.425 provides that any severance or settlement involving a government unit may not include terms that limit a party’s ability to discuss the dispute or settlement.[iii] In other words, a public agency in Florida may not pay for silence. This prohibition reflects legislative recognition of the public’s interest in transparency when taxpayer money is involved. Although the statute applies only to public employers, it illustrates a strong public-policy preference for openness and accountability.
For private employers, federal labor law imposes another set of limits. In McLaren Macomb, the National Labor Relations Board (“NLRB”) held that broad non-disparagement and confidentiality clauses in severance agreements violate section 7 of the National Labor Relations Act because they have a “reasonable tendency” to interfere with employees’ rights to act together.[iv] The NLRB further held that offering such clauses alone may constitute an unfair labor practice, regardless of whether the employee signs the agreement.[v] Unless the clause is narrowly tailored and contains carve-outs for protected activity, an employer risks an unfair labor practice charge.
Although McLaren Macomb is a federal decision, it applies to most private-sector employers in Florida with non-supervisory employees. It is therefore a warning to employers who routinely include expansive non-disparagement clauses in separation packages. In response to this decision, Florida employment attorneys have advised that employers review common severance agreement terms.[vi]
In Habitat for Humanity International v. Morris, the Middle District of Florida illustrates how courts analyze these issues. In Habitat for Humanity International, a severance contract included a non-disparagement clause that the former employee challenged as violating public policy.[vii] The court did not strike the provision down automatically. Instead, it indicated that such clauses could survive if they are reasonably tailored and do not bar essential rights, such as reporting to government agencies or participating in investigations.[viii] This holding shows how Florida courts balance freedom of contract against public-policy limitations.
Habitat for Humanity International shows that, even when non-disparagement clauses survive statutory scrutiny, enforcing them in practice remains difficult.[ix] Employers cannot easily measure actual damages caused by a former employee’s disparaging comment, and suing the former employee for that reason can generate more unfavorable publicity than the remark did.[x] Maynard Nexsen notes that cease-and-desist letters are often the only realistic remedy, and even then, damages are typically limited.[xi]
Employment lawyers now advise clients to narrow these clauses to increase enforceability and reduce regulatory risk. Best practices include: (1) limiting the clause to a short time period of one or two years; (2) defining “disparagement” precisely and specifying which mediums (social media, press, etc.) apply; (3) including carve-outs for truthful statements to regulators, courts, or law enforcement; (4) offering real consideration such as extra pay or benefits beyond what the employee already earned; and (5) adding mutuality so the employer also agrees not to disparage the employee.[xii] Incorporating these provisions ensure greater clarity, as ambiguous drafting heightens risk of invalidation.[xiii]
Overbroad non-disparagement clauses create several public-policy concerns. First, they may silence legitimate criticism, deterring employees from reporting discrimination, harassment, wage violations, or unsafe working conditions. Second, they suppress transparency and deprive regulators, investors, and consumers of valuable information. Third, they exploit power imbalances by possibly allowing an employer to use financial need to their advantage and “buy” silence on misconduct. Finally, they pose regulatory risks. The NLRB’s McLaren Macomb decision signals the Board’s willingness to police overbroad clauses, and Florida’s legislatures may follow by placing expanding restrictions on non-disparagement terms.
To balance reputation protection with the public interest, Florida courts and policymakers should require non-disparagement clauses to be time-limited and topic-specific, with carve-outs for protected speech, including whistleblowing and legal disclosures. Clauses should use clear, precise language, provide meaningful consideration beyond what the employee is owed, and avoid interfering with statutory rights under the NLRB or whistleblower statutes. Where feasible, obligations should be mutual, and a savings clause should preserve the remainder of the agreement if part of the provision is invalidated. These criteria mirror the best practices already recommended by employment counsel after McLaren Macomb and align with Florida’s statutory policy for public employers.
Non-disparagement clauses in employment and severance agreements sit at the intersection of contract law, free speech, labor rights, and public policy. Section 215.425 of the Florida Statutes provides a benchmark: even powerful government units cannot buy silence about disputes or settlements. On the private side, McLaren Macomb demands cautious drafting to avoid invalidation. Florida courts should refine the doctrine to respect employer interests while still allowing employees to speak on legitimate matters. Employers should adopt more balanced drafting, like carving out protected speech, limiting scope, and building in severability.
As debates over workplace transparency, whistleblower protections, and contract fairness intensify, the enforceability of non-disparagement clauses will increasingly be tested. Therefore, Florida should enact further statutory limits on non-disparagement in private employment agreements.
[i] Pierce Jewett, The Basics of Non-Disparagement Clauses (Mar. 15, 2024), https://www.vaemploymentlawyers.com/the-basics-of-non-disparagement-clauses/ [https://perma.cc/NV6Y-3YWJ].
[ii] Amanda E. Quinlan, The Basics of Non-Disparagement Clauses, McLane Middleton (Mar. 3, 2024), https://www.mclane.com/insights/the-basics-of-non-disparagement-clauses/ [https://perma.cc/N5RU-YAWE] (providing an overview of typical non-disparagement provisions, their scope, and best practices for drafting).
[iii] Fla. Stat. § 215.425 (2024) (barring public employers from including terms in severance or settlement agreements that restrict discussion of the dispute or settlement).
[iv] McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023) (holding that broad non-disparagement and confidentiality clauses in severance agreements violate employees’ Section 7 rights).
[v] 29 U.S.C. § 157 (2025) (protecting employees’ right to engage in concerted activities for mutual aid or protection).
[vi] Rebecca Stephens & Jamie E.S. Talt, Employers Should Review Common Severance Agreement Terms Due to New NLRB Decision, Farella Braun + Martel LLP (Mar. 4, 2023), https://www.fbm.com/publications/employers-should-review-common-severance-agreement-terms-due-to-new-nlrb-decision/ [https://perma.cc/QC7V-Z5Z2] (summarizing the NLRB’s McLaren Macomb decision and recommending revisions to severance agreements).
[vii] See generally Habitat for Humanity Int’l, Inc. v. Morris, No. 2:19-CV-456-JLB-MRM, 2021 WL 4974837 (M.D. Fla. Oct. 26, 2021) (illustrating how a Florida federal court handled a severance agreement containing a non-disparagement clause challenged on public-policy grounds).
[viii] Id. at 19–20 (acknowledging that non-disparagement and confidentiality clauses may be enforced only to the extent that they are reasonably tailored and do not prevent cooperation with law enforcement or compliance with legal process).
[ix] Id.
[x] Mitchell D. Greggs, Practical Considerations Regarding the Use of Non-Disparagement Provisions in Light of Increased Scrutiny, Maynard Nexsen (Jan. 23, 2024), https://www.maynardnexsen.com/publication-practical-considerations-regarding-the-use-of-non-disparagement-provisions-in-light-of-increased-scrutiny/ [https://perma.cc/3HXK-QL4D] (noting difficulties employers face enforcing non-disparagement provisions and offering drafting tips).
[xi] Id. (explaining that cease-and-desist letters or damages claims may be the only realistic enforcement tools).
[xii] Michael L. Matula, Negotiating and Enforcing Anti-Disparagement Clauses: A Primer for Employers, Ogletree Deakins (Jan. 28, 2020), https://ogletree.com/insights-resources/blog-posts/negotiating-and-enforcing-anti-disparagement-clauses-a-primer-for-employers/ [https://perma.cc/H3E6-337V] (providing best-practice recommendations for limiting duration, scope, and adding carve-outs to non-disparagement clauses).
[xiii] Toni Braxton, Are Your Employee Non-Disparagement Clauses Too Ambiguous? Burruezo L. (Nov. 1, 2023), https://burruezolaw.com/are-your-employee-non-disparagement-clauses-too-ambiguous/ [https://perma.cc/F5T3-GUX5] (warning that vague or overly broad language can render non-disparagement clauses unenforceable).
