For years, non-disclosure agreements — NDAs — were a standard tool employers used to buy silence. A worker would report harassment or discrimination, the employer would offer a settlement, and buried in the fine print would be a clause prohibiting the employee from ever speaking about what happened. New York has spent the last several years systematically dismantling that practice.

The Legislative Shift: 2018 to Today

The turning point came in 2018, when New York amended the Civil Practice Law and Rules and the Labor Law in the wake of the #MeToo movement. The initial reforms targeted NDAs in sexual harassment settlements specifically, requiring that any confidentiality provision be the preference of the complainant — not the employer. The employee had to be given 21 days to consider the agreement and seven days to revoke it after signing.

But the legislature did not stop there. In 2019, New York expanded these protections significantly. Under the amended law, no employer can include a non-disclosure provision in any settlement, agreement, or other resolution of a claim involving sexual harassment unless the condition of confidentiality is the complainant's preference. The law was further extended to cover all forms of discrimination and harassment — not just sexual harassment — meaning that race discrimination, disability discrimination, age discrimination, and other protected-class claims now carry the same NDA restrictions.

What the Law Actually Prohibits

Under current New York law, an NDA in a discrimination or harassment settlement cannot:

• Prevent the employee from disclosing the underlying facts of the claim to law enforcement, a government agency, or a court
• Prohibit the employee from speaking with an attorney
• Bar the employee from filing a charge with the Equal Employment Opportunity Commission (EEOC) or the New York State Division of Human Rights (DHR)
• Waive the employee's right to testify in a proceeding concerning the employer's conduct

These protections exist regardless of what the NDA says. Even if you signed an agreement that purports to prohibit these things, those clauses are void and unenforceable under New York law.

The "Preferred by the Complainant" Standard

The most important concept in New York's NDA reform is the preference requirement. Confidentiality in a harassment or discrimination settlement must be the employee's choice, not the employer's demand. In practice, this means:

• The employer cannot make confidentiality a condition of receiving any settlement payment
• The employee must be given a meaningful opportunity to consider whether they want confidentiality
• The agreement must reflect that the confidentiality provision was included at the employee's request

If an employer pressures an employee into accepting confidentiality as a take-it-or-leave-it condition of settlement, that provision is likely unenforceable.

Federal Law: The SPEAK OUT Act

At the federal level, the SPEAK OUT Act, signed into law in December 2022, added another layer of protection. The Act limits the enforceability of pre-dispute NDAs and non-disparagement clauses in cases involving sexual harassment or sexual assault. Critically, this applies to agreements signed before any dispute arises — meaning the standard confidentiality clauses buried in employment contracts and onboarding paperwork are now restricted when it comes to harassment claims.

The federal law works alongside New York's protections, not instead of them. New York's law remains broader in scope, covering all forms of discrimination, while the federal act focuses specifically on sexual harassment and assault.

What This Means If You Have Already Signed an NDA

If you signed an NDA as part of a prior settlement or severance agreement, the analysis depends on when you signed it and what it covers. Agreements signed before the 2018 reforms may be governed by older law. Agreements signed after 2019 that purport to silence you about discrimination or harassment claims are subject to the new standards, and provisions that violate those standards may be void.

This is not a simple analysis. The enforceability of any particular NDA depends on its specific language, when it was signed, what claims it covers, and how it was presented to you. If you are uncertain whether an NDA you signed is enforceable — or whether you can speak out about what happened to you — you should consult with an employment attorney before taking any action.

Retaliation Protections

It is also worth noting that even where an NDA is enforceable, New York law prohibits employers from retaliating against employees who report discrimination or harassment to government agencies. An employer cannot use an NDA as a sword to punish an employee for filing a charge with the EEOC or the DHR. If you have experienced retaliation after reporting misconduct — even if you signed a confidentiality agreement — you may have a separate retaliation claim.

The Bottom Line

New York has made clear that the days of using NDAs to bury workplace misconduct are over — at least when it comes to discrimination and harassment. If you are being asked to sign an NDA as part of a settlement, or if you are uncertain about the scope of one you already signed, the law gives you more rights than you may realize. An experienced employment attorney can help you understand exactly where you stand.