Are confidentiality agreements that prohibit discussing workplace harassment legally enforceable?

Are confidentiality agreements that prohibit discussing workplace harassment legally enforceable?

No. Provisions in non-disclosure agreements (NDAs) that prohibit an employee from discussing or disclosing conduct related to sexual harassment or sexual assault are legally unenforceable. Federal and state laws have evolved to prioritize public policy and employee safety over private contractual secrecy.

The Federal Landscape: The Speak Out Act

Signed into law in December 2022, the Speak Out Act fundamentally changed the legal landscape regarding workplace harassment. It renders any pre-dispute non-disclosure or non-disparagement clause unenforceable if it prevents an individual from discussing sexual assault or sexual harassment.

Key Provisions of the Speak Out Act

• Scope: Applies to any contract signed before a dispute arises.
• Subject Matter: Limited to sexual assault and sexual harassment disputes.
• Enforceability: Any clause attempting to silence these claims is void as a matter of law.

Key takeaway: You cannot be held liable for breach of contract for reporting sexual harassment to authorities or discussing your experience with others, regardless of what your employment agreement states.

Action Item: If you are currently bound by an NDA, review the language to see if it explicitly carves out "protected disclosures" or "reporting of illegal conduct." If it does not, the clause is likely unenforceable under federal law.

State-Level Protections: Beyond Sexual Harassment

While the federal Speak Out Act focuses on sexual misconduct, many states have enacted broader legislation that covers all forms of workplace discrimination and harassment, including race, religion, and disability.

Why State Laws Matter

State laws often provide more robust protections than federal statutes. For instance, California’s Silenced No More Act prohibits employers from requiring employees to sign agreements that prevent them from disclosing factual information about unlawful acts in the workplace, extending far beyond the scope of sexual harassment.

Action Item: Check your state’s Department of Labor website to determine if your jurisdiction has passed "Silenced No More" style legislation, which provides broader protections than the federal minimum.

Red Flags in Employment Agreements

Even if a clause is unenforceable, employers may still include "chilling" language to discourage employees from speaking out. Watch for these common red flags:

• Overly Broad Definitions: Clauses that define "Confidential Information" to include "any information regarding the company's internal culture or personnel issues."
• Non-Disparagement Clauses: Language that forbids you from making any statement that could be construed as "negative" toward the company, which is often used to silence whistleblowers.
• Liquidated Damages: Threats of massive financial penalties for any breach of confidentiality, intended to intimidate employees into silence.

Key takeaway: The presence of an illegal clause does not necessarily invalidate your entire employment contract, but it does render that specific provision void. Do not let the threat of financial penalties stop you from reporting illegal activity.

Action Item: If you encounter these red flags, do not sign the agreement without seeking a redline review from an employment attorney or using an automated analysis tool.

How to Evaluate Your Contract

If you are presented with a contract containing confidentiality provisions, follow this process to ensure your rights are protected:

1. Identify the Scope: Determine if the confidentiality clause covers "workplace conduct" or "personnel matters."
2. Look for Carve-outs: Ensure the contract explicitly states that it does not prohibit reporting to the EEOC, NLRB, or other government agencies.
3. Consult Local Law: Verify if your state law requires specific "plain language" disclosures to be included in the agreement.
4. Seek Modification: Request that the employer add a "Savings Clause" that explicitly states the agreement does not supersede federal or state anti-harassment laws.

Action Item: Keep a copy of your signed agreement in a secure, personal location. If you ever need to report harassment, you will need to reference the exact language used in your contract.

Navigating the intersection of contract law and workplace rights is complex, but you don't have to do it alone. TermScore can automatically analyze your employment agreements to identify unenforceable confidentiality clauses, overreaching non-disparagement language, and other common legal pitfalls in seconds, giving you the clarity you need to protect your professional future.