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What Are New York's NDA Restrictions for Sexual Harassment Cases?

Since 2018, New York law prohibits employers from requiring non-disclosure provisions (NDAs) in sexual harassment settlement agreements unless the victim affirmatively requests confidentiality. This reform, enacted after the #MeToo movement, prevents employers from silencing harassment victims and covering up patterns of abuse.

If you’re settling a sexual harassment claim in New York, the default is transparency—you can speak publicly about the harassment unless you choose confidentiality. Employers cannot force you to stay silent.

Why NDA Restrictions Matter

New York’s NDA law represents a fundamental shift in power:

Victim Choice: You decide whether to keep your settlement confidential, not your employer.

Pattern Exposure: When victims can speak publicly, patterns of harassment by repeat offenders become visible, protecting future employees.

Employer Accountability: Employers can no longer use NDAs to cover up serial harassers and toxic workplace cultures.

Settlement Leverage: Knowing they can’t silence you by default, employers face greater reputational risk, increasing settlement pressure.

Public Awareness: Transparency about workplace harassment creates social pressure for cultural change.

Personal Healing: Many survivors find that speaking publicly about harassment is part of their healing process. The law protects that choice.

This law reflects New York’s recognition that systemic harassment thrives in secrecy and that victims’ voices are more important than employers’ reputations.

The 2018 NDA Restriction Law

What the Law Prohibits

New York Labor Law § 5-336 prohibits:

Mandatory NDAs: Employers cannot require NDAs as a condition of settlement unless the victim requests confidentiality.

Default Confidentiality: Settlement agreements cannot default to confidential unless the victim affirmatively chooses it.

Pressure for Silence: Employers cannot condition settlement offers on confidentiality or offer different settlement amounts based on whether the victim accepts an NDA.

Waiver of Right to Speak: Any provision that prevents the victim from disclosing the “underlying facts and circumstances” of the harassment claim is prohibited unless the victim wants it.

What the Law Allows

Victim-Requested Confidentiality: If you prefer confidentiality, you can request an NDA. The choice is yours.

Consideration Period: You get 21 days to consider whether you want an NDA.

Revocation Period: After agreeing to an NDA, you have 7 days to revoke your consent.

Confidential Settlement Terms: Even without an NDA about the harassment facts, settlement agreements can keep the settlement amount and terms confidential (though not the underlying harassment).

Confidentiality About Employer Trade Secrets: Employers can still enforce NDAs about legitimate trade secrets and proprietary business information unrelated to harassment.

How New York’s NDA Law Works in Practice

Settlement Negotiation Process

When settling a sexual harassment claim, the process follows these steps:

Step 1: Settlement Terms Negotiated

You (or your attorney) and the employer negotiate settlement terms:

  • Monetary damages
  • Non-monetary relief (policy changes, training, etc.)
  • Whether you’ll resign or remain employed
  • Neutral reference agreements
  • Other terms

Step 2: Confidentiality Preference Discussed

The employer must determine whether you want confidentiality about the harassment facts:

Your Options:

  • No NDA (Default): You can speak publicly about the harassment, harasser, employer, and settlement. Only settlement amount and terms may be confidential.
  • Partial NDA: You can request confidentiality about some aspects (settlement amount, harasser’s name) but not others.
  • Full NDA: You can request complete confidentiality about all harassment facts and settlement.

Employer Cannot Pressure: The employer cannot:

  • Condition settlement on accepting an NDA
  • Offer less money if you refuse an NDA
  • Threaten to withdraw settlement if you won’t sign an NDA
  • Pressure or coerce you to request confidentiality

Step 3: Draft Settlement Agreement

If you request confidentiality, the settlement agreement includes:

Clear Statement of Your Preference: Language stating you affirmatively requested confidentiality, not that it was imposed by the employer.

Defined Scope: What information is confidential (harassment facts, harasser’s identity, settlement amount, etc.).

21-Day Consideration Period: You have at least 21 days to consider the NDA provision before signing.

7-Day Revocation Period: After signing, you have 7 days to change your mind and revoke the NDA.

Example Language:

“The confidentiality provisions in this agreement were included at the request of [victim’s name]. [Victim] had the option of entering this agreement without any confidentiality provision and was given 21 days to consider whether to request confidentiality. [Victim] may revoke consent to the confidentiality provisions within 7 days of signing this agreement.”

Step 4: Sign Settlement Agreement

After reviewing for at least 21 days (you can sign sooner if you’re certain, but employer must give you the full 21 days), you sign the settlement agreement.

Step 5: Seven-Day Revocation Period

For 7 days after signing, you can change your mind about the NDA:

Revocation Notice: You can send written notice revoking the confidentiality provisions.

Effect: The NDA becomes void. You can speak publicly about the harassment. The rest of the settlement agreement (payment, other terms) remains enforceable.

No Penalty: Revoking the NDA doesn’t affect other settlement terms. You still receive settlement payment and benefits.

Step 6: Settlement Becomes Final

After the 7-day revocation period passes without revocation, the settlement agreement (including any NDA you requested) becomes final and enforceable.

What You Can and Cannot Disclose

Without an NDA (Default):

You CAN Disclose:

  • Facts about the harassment (what happened, when, where)
  • Identity of the harasser(s)
  • Employer’s name and details
  • How the employer responded (or failed to respond)
  • The fact that you settled a claim
  • Your experiences and how harassment affected you

You CANNOT Disclose:

  • Settlement amount (typically still confidential)
  • Specific settlement terms (unless negotiated otherwise)
  • Employer trade secrets or proprietary information

With a Victim-Requested NDA:

You CANNOT Disclose:

  • Whatever the NDA covers (harassment facts, harasser identity, settlement amount, etc.)
  • Scope depends on what you agreed to

You CAN Disclose:

  • Information not covered by the NDA
  • Information to attorneys, therapists, tax advisors, immediate family (NDAs typically include these exceptions)
  • Information required by law (court orders, subpoenas)

Mandatory Arbitration Prohibition

Related to NDA restrictions, New York also prohibits mandatory arbitration for sexual harassment claims:

What the Law Prohibits

New York law (CPLR § 7515) makes mandatory arbitration clauses unenforceable for sexual harassment disputes.

Employment Arbitration Agreements: Even if you signed an agreement requiring arbitration of employment disputes, that clause cannot be enforced for sexual harassment claims.

Cannot Waive Court Access: Employers cannot require you to arbitrate harassment claims instead of filing with NYSDHR or suing in court.

No Forced Private Resolution: You have the right to public legal proceedings if you want them.

What This Means for You

You Can Sue in Court: Regardless of arbitration agreements, you can file harassment lawsuits in New York courts.

You Can File with Agencies: Arbitration agreements don’t prevent filing with NYSDHR, NYCCHR, or EEOC.

Public Accountability: You can pursue public legal proceedings, ensuring harassment isn’t handled secretly in private arbitration.

Exception—Voluntary Arbitration: After a dispute arises, you can voluntarily agree to arbitration. The prohibition is only on pre-dispute mandatory arbitration clauses.

Comparison: Pre-2018 vs. Post-2018 Law

The 2018 reforms dramatically changed settlement dynamics:

Element Before 2018 After 2018
NDA default Employer could require NDA as settlement condition Victim chooses whether NDA applies
Settlement leverage Employers used NDAs to silence victims Victims control confidentiality decision
Pattern exposure Serial harassers protected by victim silence Victims can warn others about repeat offenders
Consideration period None required 21 days to consider NDA
Revocation right None 7 days to revoke NDA after signing
Arbitration Could force harassment claims into private arbitration Mandatory arbitration unenforceable for harassment
Settlement terms Entire settlement often confidential Settlement amount can be confidential, but not harassment facts (unless victim requests)

Key Shift: Power moved from employers (who used NDAs to protect reputations) to victims (who decide whether transparency or privacy serves their interests).

Real-World Examples of NDA Law in Action

Example 1: Victim Chooses Transparency
Sarah settles her sexual harassment claim against a Manhattan law firm for $200,000. The firm’s lawyers propose an NDA covering all harassment facts. Sarah refuses. Under New York law, the firm cannot require the NDA or reduce the settlement amount. The final agreement keeps the settlement amount confidential but allows Sarah to speak publicly about the senior partner’s harassment and the firm’s inadequate response.

Example 2: Victim Requests Confidentiality for Privacy
Maria settles her harassment claim for $75,000. She’s deeply private and doesn’t want her family or community to know about the harassment. She affirmatively requests an NDA covering the harassment facts. The settlement agreement includes clear language that Maria requested confidentiality, and she receives the full 21-day consideration period and 7-day revocation period.

Example 3: Partial Confidentiality
James settles his sexual harassment claim. He wants to speak about the harassment generally to help others, but doesn’t want his settlement amount disclosed publicly (to avoid tax issues and privacy concerns). He negotiates a partial NDA: settlement amount is confidential, but he can discuss the harassment facts, employer’s name, and harasser’s conduct.

Example 4: Employer Pressure Backfires
A Buffalo company offers a harassment victim $30,000 with an NDA, or $15,000 without. This violates New York law—employers cannot condition settlement amounts on accepting NDAs. The victim’s attorney threatens to report the violation to NYSDHR. The employer settles for $50,000 without an NDA to avoid additional penalties.

Example 5: Revocation After Signing
Elena signs a settlement agreement with an NDA on Monday. Over the weekend, she talks with her therapist who helps her realize she wants to speak publicly as part of her healing. On Wednesday (within 7 days), Elena sends written notice revoking the NDA provisions. The employer cannot enforce the NDA, and Elena receives her full settlement payment while retaining the right to speak publicly.

Example 6: Serial Harasser Exposed
A New York City finance firm has settled harassment claims from three women over five years, always with NDAs (before 2018 law). In 2023, a fourth woman settles her claim without an NDA (her choice). She speaks publicly about a senior executive’s pattern of harassment. Media coverage prompts the three previous victims to realize they can’t be sued for speaking (the pre-2018 NDAs are likely unenforceable under current law). All four women go public, exposing a serial harasser and forcing the firm to terminate him.

Example 7: Arbitration Clause Unenforceable
Marcus signed an employment agreement requiring arbitration of all disputes. When he experiences sexual harassment, he sues in New York State Supreme Court. His employer moves to compel arbitration based on the agreement. The court denies the motion, citing New York’s prohibition on mandatory arbitration for sexual harassment claims. Marcus’s case proceeds in public court.

Example 8: Settlement Terms Confidential, Facts Public
A hospital settles a sexual harassment claim with a nurse for $150,000. The nurse declines an NDA about the harassment facts but agrees to keep the settlement amount and specific settlement terms confidential. The final agreement allows the nurse to discuss the doctor’s harassment and the hospital’s response, but not that she received $150,000 or specific terms like neutral references.

Example 9: Employer Trade Secrets Protected
A tech company settles a harassment claim. The victim refuses an NDA about the harassment but agrees to maintain confidentiality about company trade secrets and proprietary technology (unrelated to the harassment). This is permissible—NDA restrictions apply only to harassment facts, not legitimate business confidentiality about trade secrets.

Example 10: 21-Day Period Enforced
An employer pressures a harassment victim to sign a settlement with an NDA within 3 days, claiming the offer expires. The victim’s attorney cites New York law requiring 21 days to consider NDA provisions. The employer must either extend the deadline or remove the NDA requirement. The victim uses the full 21 days to consult with family and therapists before deciding to accept an NDA.

Example 11: Victim Changes Mind During Revocation Period
A victim signs a settlement with an NDA on Friday, believing confidentiality is best. On Monday, media coverage of similar harassment at the employer prompts her to reconsider. On Wednesday (within the 7-day revocation period), she revokes the NDA. She receives her settlement money and publicly shares her story, contributing to accountability for the employer.

Example 12: Pattern of Harassment Exposed Through Transparency
Without NDA restrictions, five former employees of a Syracuse restaurant speak publicly about the owner’s sexual harassment over several years. The owner loses business, faces NYSDHR investigation, and ultimately sells the restaurant. The transparency created by the anti-NDA law drove accountability impossible when victims were silenced.

Strategic Considerations: Should You Request an NDA?

Deciding whether to request confidentiality involves weighing personal, professional, and strategic factors:

Reasons to Decline an NDA (Choose Transparency)

Protect Future Employees: Speaking publicly warns others about harassers and problematic employers, preventing future harm.

Accountability: Public disclosure creates consequences for harassers and employers beyond financial settlements.

Personal Healing: Many survivors find speaking about harassment empowering and healing.

Systemic Change: Transparency about harassment patterns drives cultural and policy changes.

Career Future: Speaking publicly establishes you as an advocate against harassment, potentially opening professional opportunities.

Pattern Exposure: If you suspect others have been harassed, your public account may encourage them to come forward.

Reasons to Request an NDA (Choose Confidentiality)

Privacy Preference: You’re private and don’t want the harassment publicized.

Family Concerns: You want to protect family members from knowing details or media attention.

Career Concerns: You worry that being publicly associated with harassment (even as a victim) could affect future employment.

Emotional Toll: Reliving harassment publicly may be retraumatizing. Confidentiality allows you to move on privately.

Community Factors: Cultural, religious, or community factors make you prefer privacy.

Higher Settlement: While employers cannot legally offer more for an NDA, some may be willing to pay more if you request confidentiality (though this is ethically questionable).

Safety Concerns: If you fear retaliation or harm from the harasser, confidentiality may feel safer (though note: harassers often know who complained).

Partial Solutions

Limited Disclosure: You can request confidentiality about some details (harasser’s name, settlement amount) while speaking generally about the harassment.

Delayed Disclosure: Some settlements allow disclosure after a waiting period (though less common).

Anonymous Disclosure: You can speak about harassment without identifying yourself (though this limits accountability impact).

Consult Advisors

Before deciding, consult:

Attorney: Legal implications of NDA vs. transparency.

Therapist: Emotional and psychological impacts of public vs. private resolution.

Family: How disclosure affects them.

Trusted Friends: Outside perspective on your goals.

Take Your Time: Use the full 21-day consideration period. This is an important decision.

What If Your Old NDA Is Now Unenforceable?

Many pre-2018 NDAs covering sexual harassment are now unenforceable or questionable under current law:

Legal Status of Pre-2018 NDAs

Debated Enforceability: Courts are divided on whether the 2018 law applies retroactively to pre-existing NDAs.

Some Courts Say Unenforceable: Some New York courts have held that pre-2018 NDAs violate the current law’s public policy and are unenforceable.

Other Courts Enforce Them: Other courts have upheld pre-existing NDAs, saying the law isn’t retroactive.

Uncertainty: If you signed an NDA before 2018, consult an attorney about whether it’s still enforceable.

Testing Old NDAs

If you signed a pre-2018 NDA and want to speak publicly:

Consult an Attorney: Get legal advice about the specific NDA’s enforceability under current law.

Consider Speaking: Some victims with old NDAs have spoken publicly, arguing the NDAs are now void. Employers have been reluctant to sue for breach (bad publicity).

Risk Assessment: Understand the legal risk. Employers could theoretically sue for breach of contract, though enforceability is questionable.

Strength in Numbers: Multiple victims speaking together make it harder for employers to enforce NDAs against all of them.

Exceptions and Limitations

New York’s NDA law has some limits:

NDAs Not Covered by the Law

Non-Harassment Settlements: The law applies only to sexual harassment settlements. NDAs in other employment disputes (wage claims, non-sexual discrimination, breach of contract) are not restricted.

Criminal Cases: NDAs in criminal sexual assault cases follow different rules.

Non-Employment Harassment: The law covers employment harassment. Harassment in other contexts may have different rules.

Information That Can Still Be Confidential

Even without an NDA about harassment facts, these can remain confidential:

Settlement Amount: Parties typically keep settlement amounts confidential.

Settlement Terms: Specific settlement provisions (neutral references, policy changes, etc.) can be confidential.

Trade Secrets: Employers can enforce confidentiality about legitimate trade secrets unrelated to harassment.

Personnel Information: Information about other employees’ discipline or investigations can be confidential under privacy laws.

Exceptions Within NDAs

NDAs (when victim-requested) typically include exceptions allowing disclosure to:

Attorneys and Advisors: You can discuss with lawyers, accountants, financial advisors, tax professionals.

Therapists and Counselors: You can discuss with mental health providers.

Immediate Family: You can tell spouse, parents, or close family.

Required by Law: You can disclose if required by court order, subpoena, or legal obligation.

Government Agencies: You can file complaints with NYSDHR, EEOC, or law enforcement regardless of NDAs.

Enforcement and Penalties

If Employer Violates NDA Law

If an employer violates the NDA law by forcing confidentiality:

Contract Unenforceable: The NDA is void and cannot be enforced.

Additional Damages: You may be able to recover damages for the violation.

Regulatory Complaints: You can report violations to NYSDHR or the New York Attorney General.

Bad Faith Evidence: Attempting to force an illegal NDA is evidence of bad faith, potentially supporting punitive damages.

If You Violate a Valid NDA

If you requested and signed a valid NDA, then violated it:

Breach of Contract: The employer can sue for breach of contract.

Damages: You could owe damages for the breach (though proving damages is difficult for employers).

Settlement Recovery: Employers might seek to recover settlement payments (unlikely to succeed if you received payment for harassment).

Injunction: Employers could seek court orders preventing further disclosure.

Rare in Practice: Employers rarely sue harassment victims for NDA breaches due to bad publicity and difficulty proving damages.

Common Questions About NDA Restrictions

Does the law apply to all sexual harassment settlements in New York?

Yes, the law covers all settlements resolving sexual harassment claims in New York, regardless of employer size or industry.

Can employers offer more money if I accept an NDA?

Legally, no. Employers cannot condition settlement amounts on accepting NDAs. However, this is difficult to prove if employers frame it as negotiation rather than quid pro quo.

What if I already signed an NDA before 2018?

Consult an attorney. Some pre-2018 NDAs may now be unenforceable under current public policy, but legal opinions vary.

Can I agree to confidentiality without calling it an “NDA”?

Language doesn’t matter. Any provision that prevents you from disclosing harassment facts is subject to the law’s requirements (your affirmative request, 21-day consideration, 7-day revocation).

What if I’m harassed by a customer, not an employee?

The law applies to all sexual harassment settlements covered by New York Human Rights Law, including harassment by non-employees.

Can employers require me to delete social media posts about harassment?

If you didn’t agree to an NDA, no. Employers cannot force you to remove truthful posts about harassment.

What if I posted about harassment on social media during my case?

That’s your right (if you haven’t agreed to an NDA). Employers cannot retaliate or penalize you for truthful public statements about harassment.

Can employers require confidentiality about the settlement negotiations?

Settlement terms (amount, negotiation process) can be confidential, but not the underlying harassment facts (unless you request confidentiality).

What if the harasser threatens to sue me for defamation if I speak publicly?

Truthful statements about harassment are not defamation. Empty threats to silence victims are common. Consult an attorney, but don’t be intimidated by threats.

What happens if I speak publicly despite signing an NDA I requested?

You could face breach of contract claims, though employers rarely sue harassment victims (bad publicity). You’d likely forfeit any ongoing payments but probably wouldn’t have to return past payments.

Get Legal Help

NDA decisions are complex and personal. If you’re settling a harassment claim, consult an employment attorney to:

  • Understand your rights regarding confidentiality
  • Evaluate whether transparency or confidentiality serves your interests
  • Review settlement agreements for compliance with New York law
  • Ensure proper 21-day consideration and 7-day revocation periods
  • Assess enforceability of pre-2018 NDAs if you signed one

If an employer is pressuring you to accept an NDA or conditioning settlement on confidentiality, that likely violates New York law. Get legal advice immediately.

Disclaimer: This guide provides general legal information about New York’s NDA restrictions in sexual harassment cases. It is not legal advice for your specific situation. Settlement agreements and confidentiality decisions have significant personal and legal consequences. Consult a licensed New York employment attorney for advice about your case. Laws and interpretations may change over time.

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