New York

New York law prohibits confidentiality clauses in settlement agreements for sexual harassment claims, unless the complainant consents after being given 21 days to consider such terms. Legislation (passed in August 2019) extended that prohibition to all claims of discrimination. The law only prohibits NDAs that would prevent the disclosure of the underlying facts and circumstances to the claim or action and does not affect an employer’s right to prohibit disclosure of the fact of the agreement or of the settlement amount. The law includes an exception if confidentiality is the complainant’s preference. In that circumstance, the parties may agree to include an NDA that prohibits disclosure of the underlying facts and circumstances of the claim. A private employer may not, as a term of employment, require an employee to sign an NDA provision related to discrimination in an employment contract unless the provision notifies the employee that it does not prevent the employee from speaking to law enforcement, EEOC, state commission, human rights commission, or a lawyer. N.Y. Gen. Oblig. Law § 5-336.