There might be unintended consequences to rendering these agreements unenforceable. Over the course of my career, I've seen plenty of cases where employees have been part of a layoff and I've had it happen to me a couple of times as well. In almost all of these situations, employees have been asked to sign one of these non-disparagement agreements. Rarely, if ever, has anyone intended to disparage the company. But in any contract, both sides are supposed to receive consideration, and the agreement is what the company wanted for piece of mind. What the employee got was money, often quite a bit of it. If these agreements are ruled unenforceable, I'd expect companies to dial back the amount of severance they offer since there's little other consideration they could ask from departing employees. For those of us that have little interest in engaging in a public war of words with a former employer (regardless of the company's behavior, it's rare that doing so will do anything other than hurt an employee's future job prospects), unenforceable non-disparagement agreements would only cost us money.

Where I think it would be reasonable to make changes is to carve out exceptions to these agreements that are always allowed. Sexual harassment, for example, shouldn't get to hide behind a signature that was made to receive severance. Likewise, it should always be allowed to report a crime to police, even if it means accusing a former employer. Making these carve-outs explicit might make these agreements more reasonable without limiting their attractiveness to companies offering severance.