Non-Disparagement Clauses in Massachusetts: Key Considerations
Massachusetts has modernized its approach to restrictive covenants in recent years, and the principles from those reforms influence how courts view non-disparagement clauses.
Massachusetts Legal Context
Massachusetts does not have a statute specifically targeting non-disparagement clauses. However, the Massachusetts Noncompetition Agreement Act (MNAA), effective October 1, 2018 (M.G.L. c. 149, Section 24L), reformed the state's approach to post-employment restrictive covenants and provides useful context.
While the MNAA directly governs non-compete agreements (requiring garden leave or mutually agreed consideration), its emphasis on reasonableness and employee protection reflects the broader direction of Massachusetts courts. Non-disparagement clauses are evaluated under general contract law principles, with courts applying a reasonableness standard.
Enforceability Factors
- Consideration: Massachusetts courts require adequate consideration for restrictive covenants. In the employment context, the offer of employment at the outset generally suffices. For restrictions imposed later, additional consideration is typically required.
- Reasonable scope: Courts evaluate whether the restriction is reasonably necessary to protect the employer's legitimate interests. Blanket prohibitions on all negative statements may be viewed as overbroad.
- Public policy considerations: Massachusetts has strong whistleblower protections (M.G.L. c. 149, Section 185). Non-disparagement clauses that restrict communications with government agencies or reporting of illegal activity face serious enforceability challenges.
- Unconscionability: Massachusetts courts can void contract provisions that are unconscionable, particularly in contracts of adhesion where the employee had no meaningful bargaining power.
Red Flags
- Non-disparagement clauses with no consideration beyond continued at-will employment (if imposed mid-employment)
- Restrictions that could chill whistleblower activity or reporting to the Massachusetts Commission Against Discrimination (MCAD)
- Extremely broad definitions covering any negative opinion, true or false
- No time limitation on the restriction
When to Consult a Lawyer
Massachusetts has a strong tradition of employee protection. If you are presented with a non-disparagement clause in an employment or separation agreement, consider consulting a Massachusetts employment attorney to evaluate its enforceability under current law.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.