NDAs After SB 331 and the Speak Out Act: What You Can Legally Say About Harassment in 2026

Can an NDA stop you from talking about harassment in California? In most cases, no. As of 2022, California's Silenced No More Act (SB 331) and the federal Speak Out Act sharply limit an employer's ability to use a nondisclosure or non-disparagement clause to keep you quiet about workplace harassment, discrimination, or retaliation. You generally cannot be forced to stay silent about unlawful conduct, and a clause that tries to do it may be unenforceable. There are still things an NDA can protect, and there are choices that remain yours, so it helps to know exactly where the lines are.

Here is what you can say, what an NDA can still cover, and what to check before you sign anything.

At a glance

• California's SB 331 (the Silenced No More Act) bars settlement and separation agreements from silencing you about harassment, discrimination, or retaliation based on any protected characteristic, not just sex.
• A non-disparagement or confidentiality clause in a separation agreement must include specific carve-out language preserving your right to discuss unlawful conduct. Without it, the clause can be void.
• The federal Speak Out Act blocks enforcement of pre-dispute NDAs and non-disparagement clauses in sexual assault and sexual harassment matters.
• You can still choose to keep your own identity and the settlement amount private. What cannot be silenced is factual information about the unlawful conduct.

Can an NDA stop me from talking about harassment in California?

Generally, no. California law makes it unlawful to use a settlement or separation agreement to prevent you from disclosing factual information about workplace harassment, discrimination, or retaliation. This protection covers all forms of harassment and discrimination based on characteristics protected under the Fair Employment and Housing Act (FEHA), including race, religion, national origin, disability, age, sex, gender, sexual orientation, and more. So an employer generally cannot buy your silence about unlawful conduct with a severance check, and a clause that tries to may not hold up. If your agreement seems to gag you about something illegal, that is a reason to have it reviewed before you sign.

What is the Silenced No More Act (SB 331)?

SB 331, known as the Silenced No More Act, took effect on January 1, 2022. It expanded an earlier 2019 law, the STAND Act (SB 820), which had barred confidentiality provisions only in settlements involving sexual assault, sexual harassment, and sex discrimination. SB 331 broadened that protection to reach all forms of harassment, discrimination, and retaliation covered by FEHA. It applies to two kinds of documents: settlement agreements resolving those claims, and separation or employment agreements more generally. In both, an employer cannot use a confidentiality or non-disparagement clause to stop you from disclosing factual information about unlawful workplace conduct. The law is not retroactive, so it applies to agreements entered into on or after January 1, 2022.

What carve-out language does my agreement need?

This is the practical heart of the law. If a separation agreement includes a non-disparagement or confidentiality provision, SB 331 requires that it also include, in substantial form, specific language preserving your right to speak about unlawful conduct. The statute frames it as:

"Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful."

If that carve-out is missing, the non-disparagement or confidentiality provision can be unenforceable and void. So when you review a severance or separation agreement, look for this language. If a clause tries to restrict "any negative statements" without the carve-out, that is a warning sign worth raising.

What can an NDA still legally cover?

The law targets silence about unlawful conduct, not every confidentiality term. An agreement can generally still protect legitimate things, such as trade secrets and genuine confidential business information, and it can ask you not to make knowingly false or defamatory statements. Employers can also still keep certain things private with your agreement. What they cannot do is use those provisions as a cover to stop you from disclosing harassment, discrimination, or retaliation you have reason to believe occurred. In short: an NDA can protect a company's proprietary information, but it cannot protect the company's unlawful behavior.

What choices remain mine?

Some confidentiality is still your choice, and that matters. In a settlement, you can request that your own identity be kept confidential, and the amount of the settlement can generally remain private. Some people prefer that, whether for privacy or peace of mind. The point of the law is not to force you to speak, it is to make sure you cannot be forced into silence about unlawful conduct. You decide how public you want to be about your own story, within these protections.

How does the federal Speak Out Act fit in?

The Speak Out Act is a 2022 federal law that adds another layer, specifically for sexual assault and sexual harassment. It makes pre-dispute nondisclosure and non-disparagement clauses judicially unenforceable in those matters. "Pre-dispute" is the key word: it targets clauses you signed before any dispute arose, such as language buried in an onboarding packet or employment agreement, that an employer later tries to use to silence a sexual harassment or assault claim. A related 2022 federal law also lets employees void pre-dispute arbitration agreements for sexual harassment and sexual assault claims, which can free you to bring such a claim in court rather than in private arbitration.

What should I check before signing a severance or settlement?

A few practical steps protect you:

Look for the carve-out

Any non-disparagement or confidentiality clause in a separation agreement should include the SB 331 language preserving your right to discuss unlawful conduct.

Take your time

For separation agreements, California requires that you be notified of your right to consult an attorney and given at least five business days to consider it. Do not sign on the spot.

Watch for overbroad "no negative statements" clauses

These can be a red flag when they lack the required carve-out.

Separate your choices from their demands

You can agree to keep your identity or the amount private if you want to. You should not be pressured into silence about unlawful acts.

If you have a severance or settlement agreement in hand, our guide to the general release clause walks through the confidentiality and non-disparagement terms alongside the rest of what you would be signing away.

Frequently asked questions

Can an NDA stop me from talking about harassment in California?

Generally no. SB 331 bars settlement and separation agreements from silencing you about harassment, discrimination, or retaliation based on a protected characteristic. A clause that tries to do so can be unenforceable.

What is the required SB 331 carve-out language?

A non-disparagement or confidentiality provision in a separation agreement must state, in substantial form, that nothing in the agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or other conduct you reasonably believe is unlawful. Without it, the clause can be void.

Does this apply to all harassment, or only sexual harassment?

All forms. SB 331 covers harassment, discrimination, and retaliation based on any FEHA-protected characteristic. The earlier STAND Act was limited to sex-based claims; SB 331 broadened it.

What is the Speak Out Act?

A 2022 federal law that makes pre-dispute NDAs and non-disparagement clauses unenforceable in sexual assault and sexual harassment matters. It focuses on clauses signed before any dispute arose.

Can I still keep my settlement private if I want to?

Yes. You can generally request that your own identity and the settlement amount stay confidential. What cannot be barred is factual information about the unlawful conduct.

Were you asked to sign away your voice?

If a severance or settlement agreement seems to stop you from talking about harassment, discrimination, or retaliation, or it is missing the carve-out the law requires, it is worth having it reviewed before you sign. We represent employees, only employees, across California, and most of our work is in Los Angeles. The consultation is free. We handle most employment cases on a contingency-fee basis: you do not pay an attorney's fee unless we recover for you, and you are not responsible for the costs we advance if there is no recovery. We will explain the specific fee terms in writing before you decide to move forward.

Call (424) 255-8376 or contact us for a free, confidential consultation.

The Law Offices of Jonathan J. Delshad is a Los Angeles based employment law firm representing employees across California in wrongful termination, discrimination, retaliation, harassment, and wage and hour matters. Representing employees is the core of the firm's practice. Mr. Delshad serves as Editor-in-Chief of the California Wrongful Termination Law Review and trained at Latham & Watkins. Recognition includes Super Lawyers (2022 to 2025), Best Lawyers (since 2017), and an Avvo 10.0 "Superb" rating. Reviewed for California employment law accuracy. Last updated: July 13, 2026.

Attorney advertising. This article is educational only and is not legal advice. Reading it does not create an attorney-client relationship, which exists only under a signed engagement agreement. Every case is different, and outcomes depend on the specific facts. Deadlines can run early, so consult a lawyer promptly about your situation.