For years, confidentiality agreements were a common part of many workplace sexual harassment settlements. Employees often faced a difficult choice: accept a settlement that required silence or continue pursuing a claim through litigation. While every situation was different, these agreements frequently prevented employees from discussing the underlying misconduct.
California has since changed the law. Today, employers cannot rely on broad nondisclosure agreements (NDAs) to prevent employees from speaking about certain forms of unlawful workplace conduct. Although confidentiality provisions still have a place in some settlements, their scope is far more limited than many employees realize.
California Has Narrowed the Use of NDAs
In response to the #MeToo movement and growing concerns about workplace accountability, California enacted legislation restricting the use of confidentiality provisions in settlements involving sexual harassment and other forms of workplace misconduct.
The goal was to ensure that unlawful conduct could not remain hidden simply because a settlement had been reached. Employees who resolve qualifying claims are generally allowed to speak about the facts underlying their experiences, even if other portions of the settlement remain confidential.
As a result, an NDA may not be as broad or enforceable as an employer suggests.
Confidentiality Is Not Completely Prohibited
Some employees believe California eliminated NDAs. That is not the case.
Settlement agreements may still include confidentiality provisions covering subjects such as:
- The amount paid to resolve the claim.
- Certain proprietary or trade secret information.
- Confidential business information unrelated to the alleged misconduct.
- Other terms that remain permissible under California law.
The key distinction is whether the agreement attempts to prevent an employee from discussing factual information relating to unlawful workplace conduct.
Employees May Still Choose to Keep Their Identity Private
California law also recognizes that many employees value privacy.
In some circumstances, an employee may request provisions that protect personal identity or other private information while still preserving the right to discuss the alleged harassment itself. This allows employees greater control over how much they wish to disclose publicly without shielding unlawful conduct from scrutiny.
Whether a particular confidentiality provision is enforceable often depends on the specific language used in the agreement.
Not Every Workplace Complaint Falls Under the Same Rules
The restrictions on NDAs do not apply identically to every employment dispute.
Different legal considerations may arise depending on whether the allegations involve:
- Sexual harassment.
- Sexual assault.
- Workplace discrimination.
- Retaliation.
- Other unlawful employment practices covered by California law.
Because multiple statutes may apply, determining whether a confidentiality provision is enforceable often requires reviewing both the settlement agreement and the nature of the underlying claims.
Review the Agreement Before Signing
Settlement agreements are legally binding contracts. Once signed, they can affect an employee’s rights long after the workplace dispute has ended.
Before agreeing to confidentiality language, employees should carefully consider:
- What information the agreement restricts.
- Whether the language complies with current California law.
- Whether confidentiality provisions extend beyond what is legally permitted.
- How the agreement may affect future employment or public statements.
Understanding these issues before signing may help avoid unexpected limitations later.
California Law Continues to Evolve
Employment laws governing confidentiality agreements have changed significantly in recent years, and legislative updates continue to shape how settlement agreements are drafted and enforced. Employers that rely on outdated contract language may include provisions that no longer reflect California law.
Employees presented with an NDA as part of a sexual harassment settlement should understand that the agreement’s language is not necessarily the final word. The enforceability of confidentiality provisions depends on current law and the specific facts of the case.
Before You Agree to Confidentiality Terms
Resolving a workplace dispute often involves more than negotiating financial compensation. The language of a settlement agreement can affect an employee’s future rights, privacy, and ability to speak about workplace experiences. Reviewing those terms before signing can help ensure the agreement reflects both the employee’s interests and California law.
Leichter Law Firm represents employees throughout Los Angeles County and California in matters involving sexual harassment, workplace discrimination, retaliation, and settlement negotiations. Attorney Ari Leichter carefully reviews employment agreements and settlement terms to help employees understand their rights before making important legal decisions.
If you have been asked to sign a confidentiality agreement as part of a workplace sexual harassment settlement, a free confidential consultation can help you evaluate the proposed terms and make an informed decision before moving forward.