Overview

In November 2023, New York State enacted significant amendments to its General Obligations Law § 5-336, further restricting the use of non-disclosure agreements (NDAs) in settlements related to discrimination, harassment, or retaliation claims. These changes aim to enhance transparency and protect complainants from being compelled into silence. ​

 

Origins and Rationale

The amendments were introduced to address ongoing concerns about the misuse of NDAs to conceal unlawful workplace conduct. By expanding the scope of existing laws, the state seeks to ensure that victims can speak openly about their experiences without fear of legal repercussions. ​

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Key Provisions

• Expanded Scope: The law now applies to settlements involving claims of harassment and retaliation, in addition to discrimination.​

• Prohibited Provisions: Settlement agreements cannot require complainants to pay liquidated damages or forfeit compensation for violating non-disclosure or non-disparagement clauses. Additionally, agreements cannot compel complainants to affirm that they were not subjected to unlawful conduct.

• Waivable Consideration Period: The 21-day period for complainants to consider a confidentiality provision in pre-litigation settlements is now waivable, allowing for more flexibility.​

• Inclusion of Independent Contractors: The law's protections extend to independent contractors, ensuring broader coverage.​

 

Influential Figures and Advocacy

Governor Kathy Hochul signed the amendments into law, reflecting the state's commitment to strengthening workplace protections. Advocacy groups and legal experts have supported these changes, emphasizing the importance of safeguarding individuals from coercive confidentiality agreements. ​

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Current Status

The amendments took effect immediately upon signing on November 17, 2023, and apply to all relevant agreements entered into on or after that date