Can an NDA override my right to report sexual harassment under California law?

Can an NDA override your right to report sexual harassment in California?

No. Under California law, an NDA cannot legally prevent you from reporting sexual harassment, discrimination, or other unlawful workplace conduct. Recent legislation, specifically the 'Silenced No More Act' (SB 331), renders any contract provision that attempts to silence such disclosures unenforceable and potentially illegal.

The Legal Framework: SB 331 and Beyond

California has established some of the most robust worker protections in the United States. The legislative intent is clear: employers cannot use private contracts to hide systemic abuse or individual instances of harassment.

The Silenced No More Act (SB 331)

Effective January 1, 2022, SB 331 expanded the scope of the prior 'STAND Act' (SB 820). It prohibits employers from requiring employees to sign non-disparagement agreements or NDAs that restrict the disclosure of information about unlawful acts in the workplace as a condition of employment or in exchange for a raise or bonus.

• Scope: Covers all forms of harassment, discrimination, and retaliation based on protected characteristics.
• Enforceability: Any provision that violates these rules is void as a matter of public policy.
• Mandatory Language: Settlement agreements must include specific carve-outs allowing for the disclosure of unlawful acts.

Key takeaway: If your employer asks you to sign a document that restricts your ability to speak about harassment, that specific clause is likely unenforceable under California law, regardless of whether you signed it.

Action Item: Review your existing employment contract for any 'non-disparagement' or 'confidentiality' clauses. If they do not contain a clear carve-out for reporting unlawful acts, they may be non-compliant with current California standards.

Comparing Prohibited vs. Permissible Clauses

It is important to distinguish between legitimate trade secret protection and illegal silencing tactics. The following table clarifies the boundaries.

What to look for in your settlement agreement

If you are negotiating a severance or settlement agreement, ensure it contains the following mandatory language required by California law:

1. A statement that the agreement does not prevent the employee from testifying about criminal conduct.
2. A statement that the employee is not prohibited from disclosing factual information regarding sexual harassment or discrimination.
3. A clear definition of what constitutes 'unlawful acts' in the workplace.

Action Item: If you are presented with a settlement agreement, do not sign it until you have verified that it includes the mandatory 'carve-out' language required by the California Department of Fair Employment and Housing (DFEH) guidelines.

Steps to Take if You Feel Silenced

If you believe your employer is using an NDA to intimidate you into silence, you have specific legal avenues to explore.

• Document Everything: Keep a record of the harassment, including dates, times, witnesses, and any communications regarding the NDA.
• Consult Counsel: Speak with an employment attorney who specializes in California labor law to assess the validity of your specific contract.
• File a Complaint: You may file a complaint with the California Civil Rights Department (CRD) if you believe your rights have been violated.

Key takeaway: Retaliation against an employee for reporting harassment is illegal. If an employer threatens to sue you for 'breaching an NDA' after you report harassment, they are likely violating both state and federal anti-retaliation laws.

Action Item: If you are currently feeling pressured by an NDA, document the pressure tactics immediately. This evidence is critical if you need to prove bad-faith conduct by your employer.

How TermScore Can Help

Navigating complex employment contracts can be daunting, but you do not have to do it alone. TermScore uses advanced AI to instantly scan your employment agreements and settlement documents to identify non-compliant clauses, hidden non-disparagement traps, and language that may conflict with California’s Silenced No More Act. By uploading your documents to TermScore, you can gain immediate clarity on your legal standing and ensure your rights are protected before you sign.