California Confidentiality Agreements (NDAs): What Employers Can and Cannot Silence
You’re handed a document on your last day of work. “Sign this,” your employer says. “It’s standard. You just can’t talk about confidential stuff.”
But what exactly counts as confidential? More importantly, what can your employer legally force you to keep quiet about?
In California, confidentiality agreements—also called non-disclosure agreements or NDAs—face significant legal limits. While employers can protect legitimate trade secrets and proprietary information, they cannot use confidentiality agreements to silence you about harassment, discrimination, illegal conduct, or unsafe working conditions.
This guide explains what California confidentiality agreements can and cannot restrict, focusing on the groundbreaking protections in Senate Bill 331 (the “Silenced No More Act”), Labor Code Section 1102.5 whistleblower protections, and recent expansions that protect workers across all protected classes.
What Are Confidentiality Agreements?
Confidentiality agreements prohibit employees from disclosing certain information to outside parties. They typically cover:
Legitimate confidential information:
- Trade secrets and proprietary technology
- Customer lists and contact information
- Pricing strategies and profit margins
- Unreleased products or business plans
- Confidential financial information
Example clause: “Employee agrees to maintain the confidentiality of all proprietary and confidential information of the Company, including but not limited to customer lists, pricing information, product specifications, and business strategies.”
NDAs can appear in:
- Employment agreements (when you are hired)
- Severance agreements (when you leave)
- Settlement agreements (resolving disputes)
- Standalone confidentiality agreements
Senate Bill 331: California’s “Silenced No More Act” (2022)
California’s most important recent NDA reform is Senate Bill 331, the “Silenced No More Act,” which became effective on January 1, 2022. This law fundamentally changed what employers can include in confidentiality agreements.
What SB 331 Prohibits
SB 331 makes it illegal for employers to:
- Require employees to sign confidentiality agreements that prevent discussion of workplace harassment or discrimination
- Use confidentiality clauses to silence victims in settlement agreements resolving harassment and discrimination claims
- Include non-disparagement clauses in settlement agreements that prevent employees from discussing facts about unlawful conduct
- Require employees to keep confidential their right to report illegal acts in the workplace
The Expanded Scope of SB 331
Originally, some California laws only protected victims of sexual harassment and discrimination based on sex. SB 331 expanded these protections to cover all forms of discrimination and harassment protected under California’s Fair Employment and Housing Act (FEHA), including:
- Racial harassment and discrimination
- Religious harassment and discrimination
- Disability discrimination
- Age discrimination
- Gender identity and expression discrimination
- Pregnancy, childbirth, and related conditions
- All other legally protected characteristics
- Retaliation for reporting any of the above
What Must Be Included in Every NDA
If an employer includes a confidentiality clause in any employment agreement or settlement agreement, California law requires this specific language:
“Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”
This is not optional. This is not a suggestion. This language must appear in the agreement. If it’s missing or altered, the confidentiality provision may be unenforceable.
Real-World Impact of SB 331
Before SB 331, employers commonly required harassment and discrimination victims to stay silent as a condition of receiving any settlement payment. The law recognized that this silenced women, people of color, people with disabilities, and other vulnerable workers while allowing abusive employers to continue their misconduct unchecked.
SB 331 changed this. Now, your right to speak about harassment and discrimination cannot be taken away, even in exchange for a large settlement payment.
What Employers CAN Require You to Keep Confidential
California law allows employers to protect genuinely confidential business information. The California Uniform Trade Secrets Act (CUTSA) defines protectable information.
Trade Secrets
A trade secret is information that:
- Derives independent economic value from not being generally known
- Is the subject of reasonable efforts to maintain its secrecy
Examples of trade secrets:
- Proprietary software code or algorithms
- Manufacturing processes or formulas
- Customer lists with non-public information
- Pricing structures and cost data
- Business strategies and expansion plans
- Confidential research and development
What you must do: You cannot disclose this information to competitors, use it for your own benefit, or share it publicly while employed or after leaving.
Customer and Vendor Information
Employers can protect non-public customer and vendor information:
- Customer contact lists not publicly available
- Specific customer preferences and purchasing history
- Negotiated pricing and contract terms
- Vendor relationships and pricing
- Confidential customer projects or requirements
Important limit: Information you could obtain from public sources (LinkedIn, company websites, industry directories) is generally not confidential.
Proprietary Business Information
Employers can protect internal business information:
- Financial data and projections
- Marketing strategies and campaigns
- Product launch plans
- Internal processes and systems
- Competitive analyses
What you can discuss: General industry knowledge, skills you learned, and publicly available information about your employer remain yours to use.
What Employers CANNOT Silence You About
California has some of the strongest worker protections in the nation. Your employer cannot use an NDA to prevent you from disclosing the following:
1. Illegal Conduct (Whistleblower Protection)
California Labor Code § 1102.5 prohibits employers from retaliating against employees who disclose information about illegal activity.
You can report:
- Violations of state or federal law
- Violations of local regulations
- Unsafe working conditions
- Environmental violations
- Fraud or financial crimes
- Violations of professional standards
To whom you can report:
- Government agencies
- Law enforcement
- Licensing boards
- Your supervisor
- Internal compliance departments
- Attorneys
Example: You discover your employer is dumping hazardous waste illegally. Your NDA cannot prevent you from reporting this to the EPA or California environmental agencies.
2. Wage and Hour Violations (Labor Code § 232)
California Labor Code § 232 explicitly states that employers cannot require employees to sign agreements prohibiting discussion of wages, hours, or working conditions.
You can discuss:
- Your own wages and salary
- Working conditions and hours
- Coworkers’ wages (if they share with you)
- Unpaid overtime or meal breaks
- Misclassification as exempt or independent contractor
- Wage theft or payment violations
Why this matters: Pay transparency helps employees identify wage discrimination. Employers cannot use NDAs to maintain pay secrecy.
Example: You discover that male colleagues earn significantly more for the same work. You can discuss this with coworkers, attorneys, or government agencies regardless of any confidentiality agreement.
3. Workplace Harassment and Discrimination (Protected Under SB 331 and Related Laws)
California has enacted strong laws limiting NDAs in harassment and discrimination cases, with SB 331 being the primary statute:
How SB 331 Protects You
Under Senate Bill 331 (effective January 1, 2022), your employer:
- Cannot require you to sign an NDA that prevents discussion of harassment or discrimination as a condition of employment
- Cannot enforce confidentiality clauses in settlement agreements that would prevent you from discussing harassment or discrimination
- Must include the required legal notice if using any confidentiality clause in an employment or settlement agreement
- Cannot retaliate if you disclose facts about unlawful harassment or discrimination
This protection applies to all types of harassment and discrimination under California’s Fair Employment and Housing Act, not just sexual harassment.
Earlier Laws: SB 820 (2019)
Before SB 331, SB 820 (effective January 1, 2019) prohibited settlement agreements from preventing disclosure of factual information related to sexual assault and sexual harassment.
Recent Expansion: AB 3077 (2024)
Effective January 1, 2025, AB 3077 further expanded protections to explicitly include all forms of discrimination and harassment beyond sex.
What These Laws Mean for You
Under SB 331, SB 820, and AB 3077 combined, you can:
- Discuss facts about harassment or discrimination you experienced
- Tell your story publicly if you choose
- Report to government agencies (DFEH/CRD, EEOC)
- Cooperate with investigations
- Consult with attorneys
- Support other employees who experienced similar conduct
What your employer can still control: The amount of money paid in settlement. You can be required to keep the settlement amount confidential, but not the facts that prompted the settlement.
4. PAGA and Labor Law Violations
You cannot be silenced about Private Attorneys General Act (PAGA) violations or Labor Code violations:
- Wage theft
- Unpaid rest or meal breaks
- Misclassification
- Unsafe working conditions
- Retaliation for protected activity
Why this matters: PAGA allows employees to sue on behalf of the state for Labor Code violations. NDAs cannot prevent you from filing PAGA claims or reporting violations to the Labor Commissioner.
5. Criminal Activity
No NDA can prevent you from:
- Reporting crimes to law enforcement
- Cooperating with criminal investigations
- Testifying in criminal proceedings
- Complying with subpoenas or court orders
Example: Your employer asks you to falsify financial records. Your NDA cannot prevent you from reporting this fraud to law enforcement or cooperating with an investigation.
Federal Protections: The Defend Trade Secrets Act (DTSA)
The federal Defend Trade Secrets Act (enacted 2016) provides additional protections for whistleblowers who disclose trade secrets.
DTSA Immunity Provision
You cannot be held liable for disclosing trade secrets if:
- You disclose them in confidence to government officials or attorneys
- The disclosure is made solely to report or investigate a suspected legal violation
Required notice: Employers must notify employees of DTSA immunity in any agreement that governs trade secrets. If your employer fails to provide this notice, they may lose the ability to recover exemplary damages or attorney fees in a trade secret lawsuit.
What this means: You can share confidential information with attorneys or government agencies when reporting suspected violations without fearing trade secret liability.
Legitimate vs. Illegal Confidentiality Provisions
Here is how to distinguish between enforceable and unenforceable NDA provisions:
| Legitimate Confidentiality Provisions | Illegal Silencing Provisions |
|---|---|
| “Employee will not disclose customer lists, pricing, or product specifications” | “Employee will not disclose any information about working conditions or compensation” |
| “Employee will protect trade secrets and proprietary information” | “Employee will not report violations of law to government agencies” |
| “Employee will not share unreleased product plans or business strategies” | “Employee will not discuss harassment, discrimination, or workplace safety issues” |
| “Employee will not use confidential information for personal benefit” | “Employee will not communicate with attorneys about employment matters” |
| Protects specific confidential business information | Broadly prevents discussion of workplace issues |
| Does not interfere with legal rights | Violates Labor Code protections |
| Allows reporting of illegal conduct | Prevents whistleblowing or legal complaints |
Red flag language:
- “Employee will not make any negative statements about the Company”
- “Employee will not discuss any aspect of employment”
- “Employee will not disclose this agreement to anyone”
- “Employee waives the right to file complaints with government agencies”
These provisions violate California law and are unenforceable.
NDAs in Settlement Agreements
Settlement agreements often include confidentiality provisions. California law restricts what can be included.
What Settlement NDAs Can Cover
Settlement agreements can require confidentiality about:
- The amount paid to settle
- Terms of the settlement
- Negotiations leading to settlement
What Settlement NDAs Cannot Cover (Post-SB 820 and AB 3077)
Settlement NDAs cannot prevent disclosure of:
- Facts underlying harassment or discrimination claims
- Details of unlawful conduct
- Workplace safety violations
- Your decision to speak about your experience
Important: The restriction applies to settlement agreements involving claims of harassment, discrimination, or retaliation based on any protected characteristic.
Example: You settle an age discrimination lawsuit. The settlement includes an NDA. You must keep the settlement amount confidential, but you can publicly discuss the discriminatory treatment you experienced.
The “Right to Speak” Provision
Under SB 820 and AB 3077, settlement agreements must include a provision substantially similar to:
“Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, including but not limited to sexual harassment or discrimination, or from cooperating with government agencies investigating such conduct.”
If your settlement agreement lacks this language, consult an attorney.
For more detail, see severance agreements.
Real-World Examples: When NDAs Don’t Apply
Example 1: Reporting Wage Theft
Situation: Maria works as a restaurant server. She signs an employment agreement with a confidentiality clause stating she will not “disclose any information about her employment, including compensation or working conditions.”
Maria discovers her employer is not paying overtime and is keeping part of employee tips. She wants to file a complaint with the Labor Commissioner.
Result: The confidentiality clause cannot prevent Maria from reporting wage violations. Labor Code § 232 explicitly allows employees to discuss wages and working conditions. The wage theft also constitutes illegal conduct under Labor Code § 1102.5 whistleblower protections.
Outcome: Maria files a wage claim and a PAGA lawsuit. Her employer cannot enforce the NDA against her.
Example 2: Discussing Sexual Harassment
Situation: Jennifer experiences sexual harassment from her supervisor. She reports it to HR, and the company investigates. They offer her a settlement of $50,000 to resolve the matter, including an NDA.
Jennifer wants to tell her family what happened and warn other women about her former supervisor.
Result: Under SB 820, Jennifer cannot be prevented from discussing the facts of the harassment. She can tell her story publicly if she chooses. The NDA can only restrict disclosure of the settlement amount.
Outcome: Jennifer signs the settlement but later speaks publicly about her experience. Her employer cannot sue her for violating the NDA.
Example 3: Trade Secret vs. General Knowledge
Situation: David works as a software engineer. He signs an NDA covering “all information learned during employment.” He leaves to work for a competitor.
His former employer claims he is violating the NDA by using “confidential” information—specifically, general programming skills and knowledge of industry-standard practices.
Result: General skills and knowledge are not trade secrets. The NDA cannot prevent David from using abilities he would have regardless of where he worked.
Outcome: If the former employer sues, the court will likely rule that David is not violating the NDA. General industry knowledge is not confidential information.
What to Do If Your Employer’s NDA Violates the Law
If you signed an NDA that prohibits protected disclosures, follow these steps:
Step 1: Identify Illegal Provisions
Review your NDA for provisions that:
- Prohibit discussion of wages or working conditions
- Prevent reporting of illegal conduct
- Silence harassment or discrimination complaints
- Restrict communication with government agencies
- Prevent you from cooperating with investigations
Step 2: Understand Your Rights
Know that illegal NDA provisions are unenforceable:
- You can report violations despite the NDA
- Your employer cannot retaliate for protected disclosures
- Courts will not enforce illegal confidentiality provisions
Step 3: Document Everything
Keep copies of:
- Your NDA or confidentiality agreement
- Evidence of violations you want to report
- Any threats or retaliation from your employer
- Communications about the confidential information
Step 4: Report to Appropriate Authorities
Depending on the violation, report to:
- Labor Commissioner: Wage and hour violations
- DFEH/CRD: Discrimination and harassment
- OSHA/Cal/OSHA: Safety violations
- Licensing boards: Professional violations
- Law enforcement: Criminal activity
Step 5: Consult an Employment Attorney
Before making disclosures that might violate your NDA:
- Get legal advice about what is protected
- Understand your rights under whistleblower laws
- Learn about potential retaliation protections
- Determine whether you need an attorney to report
Important: Even if your disclosure is protected, your employer might retaliate. An attorney can help you document retaliation and pursue legal remedies.
Protecting Yourself When You Leave Your Job
When you separate from your employer, take these steps to comply with legitimate confidentiality obligations while preserving your rights:
What You Should Do
- Return confidential materials: Give back documents, files, customer lists, or proprietary information
- Delete company data: Remove confidential information from personal devices
- Avoid taking trade secrets: Do not take customer lists, pricing data, or proprietary files
- Preserve evidence of violations: If you witnessed illegal conduct, save evidence before leaving (but consult an attorney first)
What You Should Not Do
- Do not take customer databases: Using stolen customer lists can result in trade secret claims
- Do not share proprietary information: Disclosing actual trade secrets to competitors can lead to liability
- Do not use confidential pricing: Sharing confidential pricing with a new employer may violate your NDA
- Do not ignore legitimate obligations: Just because some NDA provisions are illegal does not mean all are
Key distinction: You can use general knowledge and skills. You cannot use specific confidential information that qualifies as a trade secret.
How California’s NDA Laws Compare to Other States
California provides stronger protections against overly broad NDAs than most states:
| State | Settlement NDAs | Wage Discussions | Whistleblower Protections |
|---|---|---|---|
| California | Cannot silence harassment/discrimination facts (SB 820, AB 3077) | Prohibited from restricting (Labor Code § 232) | Strong protections (Labor Code § 1102.5) |
| New York | Limited restrictions on NDAs (similar to CA) | Protected under labor law | Moderate protections |
| Texas | Generally enforceable | Generally enforceable | Limited protections |
| Illinois | Some restrictions on harassment NDAs | Some protections | Moderate protections |
| Federal Law | DTSA whistleblower immunity | NLRA protections for collective activity | Various federal statutes |
Key difference: California’s combination of Labor Code § 232, § 1102.5, SB 820, and AB 3077 creates comprehensive protection against employer silencing.
Frequently Asked Questions
Can my employer fire me for violating an NDA?
It depends on what you disclosed. If you disclosed legitimate trade secrets for improper purposes, your employer can terminate you. However, if you disclosed information about illegal conduct, wage violations, or harassment, you are protected from retaliation under California whistleblower laws. Firing you for protected disclosures would constitute wrongful termination.
What if my NDA says I cannot talk to attorneys?
This provision is unenforceable. You have a constitutional right to consult with attorneys. California law explicitly protects attorney-client communications. Any NDA provision restricting your ability to speak with legal counsel is void.
Can I be sued for discussing my salary with coworkers?
No. Labor Code § 232 explicitly prohibits employers from enforcing NDAs that prevent wage discussions. You can discuss your compensation with coworkers, and your employer cannot discipline or sue you for doing so.
What if I signed an NDA in a severance agreement?
Severance agreement NDAs must comply with the same laws. They cannot prevent you from reporting illegal conduct, discussing harassment or discrimination, or disclosing wage violations. Review your severance NDA carefully before signing. See severance agreements for more information.
Can an NDA prevent me from leaving a negative online review about my employer?
Possibly, but only if the review discloses legitimate trade secrets or confidential business information. NDAs cannot prevent you from sharing truthful information about your employment experience, workplace conditions, or illegal conduct. However, be careful not to disclose actual trade secrets in online reviews.
Next Steps: Know What You Can and Cannot Disclose
Key takeaways about California confidentiality agreements:
- Employers can protect legitimate trade secrets and proprietary information
- Employers cannot silence you about illegal conduct, wage violations, harassment, or discrimination
- California law provides strong whistleblower and worker protections
- Federal law (DTSA) protects disclosures to attorneys and government agencies
- Recent laws (SB 820, AB 3077) prevent silencing of harassment and discrimination victims
If your employer is threatening you for making protected disclosures or has required you to sign an illegal NDA, you may have claims for retaliation, wrongful termination, or violations of public policy.
Need help understanding your confidentiality agreement? Our employment attorneys can review your NDA and advise you on what you can legally disclose. We offer free consultations to discuss your situation and your rights under California law.
Related Resources for Your Situation
- [[California – Employment Contracts]] (Parent Hub): Comprehensive guide to all types of employment contracts
- [[California – Workplace Retaliation]]: Your rights if you’re retaliated against for protected disclosures
- [[whistleblower protections]]: Additional protections under Labor Code Section 1102.5
- [[California – Sexual Harassment]]: Detailed information about sexual harassment laws and remedies
Key Takeaways
- SB 331 (effective 2022) fundamentally changed NDA rules, prohibiting confidentiality agreements that silence you about harassment or discrimination
- You cannot be required to sign an NDA that prevents discussion of any unlawful workplace conduct
- California law requires all NDAs include specific language protecting your right to discuss illegal acts
- Labor Code Section 1102.5 provides whistleblower protections that no agreement can override
- Employers can still protect legitimate trade secrets and proprietary business information
- Settlement amounts can remain confidential, but the facts causing the settlement cannot
References
- California Uniform Trade Secrets Act (CUTSA), Civil Code §§ 3426-3426.11
- California Labor Code § 1102.5 (whistleblower protection)
- California Labor Code § 232 (wage discussion protection)
- Senate Bill 331 (2021) – “Silenced No More Act” – Confidentiality and non-disparagement restrictions
- Senate Bill 820 (2018) – Sexual harassment settlement NDAs
- Assembly Bill 3077 (2024) – Expanded NDA restrictions for all protected classes
- Defend Trade Secrets Act (DTSA), 18 U.S.C. § 1833(b)
- California Code of Civil Procedure § 1001 (settlement confidentiality)
- California Government Code §§ 12950-12965 (FEHA – Fair Employment and Housing Act)
Last Updated: November 6, 2025
Legal Disclaimer: This article provides general information about California employment law and is not legal advice. Employment situations vary, and laws change. Consult a qualified California employment attorney for advice about your specific situation. Nothing in this article creates an attorney-client relationship.