Non-Disparagement Clauses in Texas: What You Need to Know
Texas generally enforces non-disparagement clauses when they are reasonably drafted and supported by adequate consideration. However, there are important limits.
Texas Legal Framework
Texas does not have a specific statute governing non-disparagement clauses. Their enforceability is determined primarily through common law contract principles. Texas courts will enforce these clauses when they meet basic contract requirements: offer, acceptance, consideration, and mutual assent.
Under the Texas Uniform Trade Secrets Act (Tex. Civ. Prac. & Rem. Code Ch. 134A), employers sometimes pair non-disparagement clauses with trade secret protections. Courts distinguish between protecting legitimate business interests and improperly silencing former employees.
Factors Courts Consider
- Consideration: The clause must be supported by adequate consideration. In employment, continued employment alone may not suffice. A signing bonus, severance payment, or other tangible benefit strengthens enforceability.
- Reasonable scope: Clauses that are extremely broad (prohibiting any negative statement, ever, to anyone) may be found unreasonable. Courts look favorably on clauses limited to specific topics and timeframes.
- First Amendment and public policy: While the First Amendment applies to government action rather than private contracts, Texas courts will not enforce clauses that violate public policy, such as preventing truthful complaints to government agencies.
- Anti-SLAPP protections: Texas has the Texas Citizens Participation Act (TCPA), which can apply when non-disparagement enforcement involves matters of public concern. This may provide defendants with a mechanism to dismiss certain enforcement actions.
Red Flags
- Clauses with no time limitation on the restriction
- Overly broad definitions of "disparagement" that include truthful factual statements
- No carve-out for communications with government agencies or legal proceedings
- Liquidated damages that appear punitive rather than compensatory
When to Consult a Lawyer
If you are negotiating a severance agreement or settlement with a non-disparagement clause in Texas, consider having a Texas employment attorney review the terms. The enforceability of these clauses depends heavily on the specific language and circumstances.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.