A non-disparagement clause in Texas is generally enforceable as a matter of contract law, but several federal statutes carve out situations where it cannot be used to silence you no matter what the agreement says. Texas courts treat these provisions like any other contract term: valid if both sides gave up something of value and the language is reasonably clear. The harder questions come from the federal protections layered on top, which cover whistleblowers, employees discussing workplace conditions, survivors of sexual harassment, and consumers writing reviews.
What the Clause Actually Restricts
A non-disparagement clause is a contract provision that prohibits one or both parties from making negative statements about the other. It shows up most often in severance agreements, settlement documents, and employment contracts. The typical restriction reaches every form of communication, from social media posts to interviews with reporters to conversations at industry events.
The scope is broader than defamation, and that catches people off guard. Defamation requires a false statement. A non-disparagement clause can prohibit truthful but damaging statements and negative opinions too. An accurate but unflattering account of a former employer’s management practices can breach the clause even though truth would defeat a defamation claim outright. If you signed one and are thinking about posting something, the question is not whether it’s true. The question is whether it’s negative.
Well-drafted clauses include specific carve-outs so silence doesn’t collide with legal obligations. Common exceptions allow truthful testimony in court, communications with government agencies, and disclosures to your attorney, tax advisor, or immediate family. If a clause you’re reviewing has none of these, that’s worth flagging with a lawyer before you sign.
When Texas Courts Will Enforce One
Texas is a strong freedom-of-contract state. Courts here enforce a non-disparagement clause that meets the basic contract requirements, the most important being consideration: each side must give up something of value. In a severance agreement, the employer pays severance and the departing employee agrees to stay quiet. In a settlement, one party pays and the other drops claims and agrees not to speak publicly. Without consideration on both sides, there’s nothing to enforce.
Clarity matters too. A clause that vaguely prohibits “negative communications” without defining disparagement, identifying who is covered, or setting a duration is vulnerable to challenge. Courts are more likely to enforce provisions that specify the conduct restricted, the people or entities protected, and how long the obligation runs. A clause saying “you will not say anything bad about the company” invites a fight the employer might lose.
One common misconception is worth clearing up: the First Amendment will not rescue you. The constitutional right to free speech protects you from government punishment for what you say. It does not protect you from the consequences of breaking a private contract you voluntarily signed.
Federal Limits That Override the Contract
Even a valid Texas non-disparagement clause gives way to federal law in specific situations. No private agreement can waive these protections.
Talking About Working Conditions
Section 7 of the National Labor Relations Act protects employees’ right to engage in concerted activities for mutual aid or protection, which includes discussing wages, working conditions, and workplace problems with coworkers or the public.1Office of the Law Revision Counsel. United States Code Title 29 – Section 157 In 2023, the National Labor Relations Board ruled in McLaren Macomb that employers violate the NLRA simply by offering severance agreements with overly broad non-disparagement provisions that would chill employees from exercising these rights.2National Labor Relations Board. Board Rules That Employers May Not Offer Severance Agreements Requiring Employees to Broadly Waive Labor Law Rights The Board’s position is that a non-disparagement clause covering non-supervisory employees needs to be narrow enough to avoid sweeping in protected workplace discussions.
NLRB General Counsel guidance issued after that decision clarified that lawful severance agreements can still contain non-disparagement language, but the restrictions cannot be so broad they prevent employees from talking about working conditions or accessing the NLRB.3National Labor Relations Board. NLRB General Counsel Issues Memo with Guidance to Regions on Severance Agreements This applies in Texas the same as everywhere else. A blanket “don’t say anything negative” clause aimed at rank-and-file employees is on shaky ground.
Filing Complaints and Cooperating With Government Agencies
A non-disparagement clause cannot prevent you from filing a charge with the Equal Employment Opportunity Commission, cooperating with an EEOC investigation, or participating in any EEOC proceeding. These rights are non-waivable under federal civil rights laws, and any contract language purporting to restrict them is void as a matter of public policy.4U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Non-Waivable Employee Rights Under EEOC Enforced Statutes The same principle applies to reporting safety violations to OSHA and cooperating with other government investigations. You also cannot be barred from testifying truthfully in a legal proceeding.
For employees of publicly traded companies or those in the securities industry, the SEC’s whistleblower rule adds another layer. Rule 21F-17 prohibits any person from taking action to impede someone from communicating directly with SEC staff about a possible securities law violation, including by enforcing a confidentiality or non-disparagement agreement.5eCFR. 17 CFR 240.21F-17 – Staff Communications Clauses that require you to notify your employer before contacting the SEC, or that require company counsel to be present during SEC interviews, cross the line.
Sexual Harassment and the Speak Out Act
The federal Speak Out Act, signed into law in December 2022, makes pre-dispute non-disparagement clauses unenforceable when a sexual assault or sexual harassment dispute later arises.6Office of the Law Revision Counsel. United States Code Title 42 – Chapter 164 Speak Out Act “Pre-dispute” is the key word. A non-disparagement clause you signed in your original employment contract cannot be used to silence you about a sexual harassment or assault claim that arose later.
A non-disparagement clause in a settlement agreement negotiated after a harassment allegation has already been made is different. That clause was agreed to with knowledge of the specific dispute and remains enforceable. The Speak Out Act targets the scenario where someone signs a broad provision at the start of employment, long before any misconduct occurs, and later discovers it could be turned against them.
Consumer Reviews
If you’re facing a non-disparagement clause as a customer rather than an employee, the Consumer Review Fairness Act protects you. Any provision in a standard form contract that prohibits or restricts your ability to post a review, imposes a fee or penalty for one, or forces you to give up intellectual property rights in your review content is void from the moment the contract was formed.7Office of the Law Revision Counsel. United States Code Title 15 – Section 45b Consumer Review Protection This applies to take-it-or-leave-it contracts for goods and services where you have no real bargaining power.
The law is not unlimited. Businesses can still pursue defamation claims for reviews that are false, and the statute does not override confidentiality duties imposed by other laws or protect reviews containing trade secrets. But a contractor, dentist, or apartment complex that buries a gag clause in its service agreement cannot fine you for a negative review. That provision was never valid to begin with.
Extra Procedural Protections for Workers 40 and Older
If you’re 40 or older and being asked to sign a severance agreement containing a non-disparagement clause, the Older Workers Benefit Protection Act imposes procedural requirements your employer must follow. Any waiver of rights under the Age Discrimination in Employment Act must be knowing and voluntary. The agreement must be written in plain language, specifically reference your ADEA rights, advise you in writing to consult an attorney, and offer consideration beyond what you’re already owed.8Office of the Law Revision Counsel. 29 U.S. Code 626 – Recordkeeping, Investigation, and Enforcement
You must also receive at least 21 days to review the agreement before signing, or 45 days if you’re part of a group layoff, along with a 7-day revocation period after signing. The agreement doesn’t take effect until that revocation window closes. If your employer pressures you to sign on the spot or skips any of these steps, the ADEA waiver isn’t enforceable, and that failure can unravel the entire agreement, including the non-disparagement clause.
What Happens If Someone Breaches
When a non-disparagement clause is violated, the injured party has a few options. Many start with a cease-and-desist letter demanding the offending statements come down, since a lawsuit can draw more public attention to the very comments the clause was designed to prevent.
The most direct remedy is money damages. The challenge is proving actual financial harm caused by the disparaging statements. A company claiming a former employee’s post cost it business needs to show real, quantifiable losses tied to that specific post. Vague claims of reputational injury rarely succeed. Some agreements address this proof problem with a liquidated damages provision setting a predetermined amount owed on breach. Texas courts enforce liquidated damages when the actual harm would have been difficult to calculate in advance and the specified amount is a reasonable estimate rather than a punishment. Amounts designed to scare rather than approximate real losses are treated as unenforceable penalties.
A party can also seek an injunction ordering the violator to stop making disparaging statements and remove existing ones from social media. Getting one requires showing that money damages alone won’t fix the problem and that the ongoing statements are causing irreparable harm. Some agreements include language stating that both parties agree a breach would cause irreparable harm, though Texas courts have not uniformly treated these stipulations as conclusive.
Watch the deadline. In Texas, the statute of limitations for breach of a written contract is four years from the date of the breach. For a non-disparagement clause, the clock starts when the statement is made, not when you found it. A social media post you discover two years after publication has already burned through half your window.
What to Negotiate Before You Sign
These clauses are negotiable, even when they don’t look it. In a severance or settlement agreement, the definition of disparagement, who is covered (just the company, or also individual executives), whether the obligation runs both ways, and how long it lasts are all fair game. A clause that restricts your speech indefinitely with no corresponding obligation on the employer’s side is a one-sided deal, and recognizing that is leverage.
Look for a savings provision confirming that the clause does not restrict your rights under federal labor law, your ability to file agency complaints, or your right to testify truthfully. The absence of those carve-outs doesn’t automatically void the clause, because federal protections apply whether the contract acknowledges them or not. But their absence tells you the drafter either didn’t know or didn’t care about those limits, and that should make you cautious about what else the agreement might overreach on.