Silenced No More: Why NDAs Cannot Be Used to Punish Harassment Disclosures

Many employees leave a toxic workplace with more than just emotional stress — they leave with paperwork. After signing a nondisclosure agreement (NDA), it is common to feel trapped and uncertain about what can legally be said. Workers often ask the same urgent question: “If I report harassment, will I be sued for breach of contract?” That fear alone has historically kept countless employees silent.

For years, NDAs were routinely included in employment agreements and settlement packages, often drafted broadly enough to discourage any discussion of workplace misconduct. In harassment cases, these provisions were frequently used as leverage — implying that speaking out could trigger expensive litigation or financial penalties. The result was a culture of silence that protected institutions rather than employees.

However, the legal landscape in California has changed significantly. California SB 331 compliance, along with strengthened protections in recent legislative updates through 2026, limits how employers can use confidentiality provisions in harassment and discrimination cases. These laws make clear that agreements cannot prohibit employees from disclosing factual information about unlawful workplace conduct. In other words, confidentiality clauses cannot override public policy protecting victims of harassment. Experienced employment attorneys play a critical role in helping workers interpret the scope of an NDA, determine whether provisions are enforceable, and protect themselves from unlawful threats or retaliation.

The bottom line is this: In California, NDAs cannot lawfully be used to silence employees about workplace harassment or to justify retaliation for speaking out.

1. Understanding California SB 331 Compliance

California SB 331 compliance, also known as the “Silenced No More Act,” represents a significant shift in how confidentiality agreements are treated in the workplace. Enacted to curb the misuse of nondisclosure provisions, the law was designed to prevent employers from using confidentiality agreements to conceal unlawful workplace conduct. Its broader purpose is twofold: to increase transparency around employment rights and to encourage reporting of harassment and misconduct 

Under California SB 331 compliance requirements (the “Silenced No More Act”), the law broadly protects employees’ right to disclose factual information about workplace misconduct. It covers:

• Harassment
  • Sexual harassment (quid pro quo and hostile work environment)
  • Harassment based on protected characteristics such as race, gender, age, disability, religion, sexual orientation, national origin, and more
  • Repeated inappropriate comments, unwanted advances, or abusive conduct that creates a hostile work environment
• Discrimination
  • Unequal treatment in hiring, firing, promotions, pay, scheduling, or discipline based on protected characteristics
  • Biased decision-making that limits advancement opportunities
  • Policies or practices that disproportionately harm protected groups
• Retaliation
  • Punishing an employee for reporting harassment or discrimination
  • Adverse actions after filing an internal complaint or government charge
  • Demotions, reduced hours, undesirable assignments, or termination following protected activity
• Any conduct employees reasonably believe is unlawful
  • Situations where a worker reports misconduct in good faith, even if an investigation later determines no legal violation occurred
  • Whistleblowing regarding violations of employment, wage-and-hour, or workplace safety laws
  • Reporting patterns of behavior that appear discriminatory or abusive based on observable facts

Importantly, while certain confidentiality protections may still apply to trade secrets or proprietary business information, agreements cannot silence employees from speaking about factual experiences involving unlawful behavior. Settlement agreements resolving harassment or discrimination claims likewise cannot impose blanket gag orders on disclosures of underlying misconduct. Employers who fail to ensure California SB 331 compliance risk having those confidentiality provisions deemed unenforceable — and may expose themselves to additional liability if they attempt to enforce unlawful terms.

1. Voiding NDAs for Harassment and Why Gag Orders Fail

One of the most important protections under modern California employment law is the ability to seek voiding NDAs for harassment when those agreements attempt to silence disclosures about unlawful conduct. While employers may still use confidentiality clauses to protect trade secrets or proprietary information, they cannot enforce provisions that prevent employees from discussing factual information related to harassment, discrimination, or retaliation. If an NDA conflicts with public policy designed to protect workers, that portion of the agreement may be unenforceable.

Many employees hesitate to speak out because of persistent misconceptions about nondisclosure agreements:

• Myth: “If I signed it, I’m stuck forever.”
• Reality: Contracts that violate public policy are unenforceable. California courts do not uphold agreements that attempt to suppress reports of unlawful workplace conduct.

California law makes clear that NDAs cannot legally:

• Prevent employees from reporting harassment to government agencies, such as filing complaints with civil rights or labor enforcement authorities
  Employees retain the right to file charges or complaints with agencies like the Civil Rights Department (CRD), the Equal Employment Opportunity Commission (EEOC), or the Labor Commissioner, regardless of any confidentiality language in an agreement. An employer cannot lawfully penalize a worker for initiating or cooperating with an administrative complaint. Even if an NDA contains broad language about “confidential matters,” it cannot override a worker’s statutory right to seek government intervention or protection.
• Stop employees from participating in investigations, whether internal, administrative, or judicial
  NDAs cannot prohibit employees from responding truthfully if contacted as a witness in an investigation or lawsuit. Workers may provide testimony, documents, or other evidence in legal proceedings involving harassment or retaliation claims. Attempting to discipline or threaten an employee for cooperating with an investigation may itself constitute unlawful retaliation. The legal system depends on witness participation, and private contracts cannot obstruct that process.
• Bar disclosures of factual information about unlawful workplace conduct, including sharing experiences of harassment or retaliation
  While employers may protect proprietary business information, they cannot silence employees from discussing the factual circumstances of harassment, discrimination, or retaliation they experienced or witnessed. This includes describing inappropriate comments, unwanted advances, discriminatory scheduling decisions, or retaliatory discipline. California public policy favors transparency when it comes to unlawful conduct, and agreements that attempt to conceal such behavior risk being deemed unenforceable.

In short, NDAs cannot be used as tools to shield misconduct from accountability. When confidentiality clauses conflict with employees’ rights to report, testify, or speak truthfully about unlawful workplace behavior, the law protects the employee—not the silence.

Courts consistently prioritize public policy over private contract terms when harassment is involved. The state’s interest in preventing workplace misconduct and protecting employees from abuse outweighs an employer’s desire for secrecy. When a confidentiality clause attempts to shield unlawful behavior rather than legitimate business interests, judges are likely to refuse enforcement. In short, gag orders that seek to silence victims of harassment do not override California’s strong legal protections for transparency and accountability.

III. Retaliation for Breaking a Gag Order Is Also Illegal 

In the workplace context, retaliation occurs when an employer takes adverse action against an employee because they engaged in protected activity — such as reporting harassment, participating in an investigation, or refusing unlawful conduct. Protected activity includes speaking out about discrimination or harassment, even if the report is made internally or to a government agency. When an employer punishes an employee for exercising those rights, the law treats that punishment as a separate legal violation.

Importantly, retaliation for breaking a gag order tied to unlawful conduct may itself violate California law. If an employee discloses harassment in a manner protected by statute, threatening to sue them for “breach of contract” under an NDA can be viewed as an attempt to intimidate or silence protected speech. Courts may consider such threats as evidence of retaliatory intent — particularly if the NDA conflicts with public policy or statutory protections. In some cases, the mere act of sending a threatening legal demand can strengthen an employee’s retaliation claim.

Common examples of unlawful retaliation in this context include:

• An employer sends a demand letter after the employee files a complaint, alleging breach of an NDA in response to a harassment disclosure
• An employer withholds final pay, bonuses, or professional references after the employee speaks out
• An employer threatens costly litigation to intimidate silence, even when the employee’s disclosure is legally protected

California law prohibits retaliation connected to reporting or disclosing unlawful workplace conduct. Employers cannot use the fear of financial ruin or legal action to deter employees from asserting their rights. When a confidentiality agreement intersects with allegations of harassment, public policy and statutory protections take priority over private contract terms.

Employees should not assume that signing an NDA eliminates their right to speak about unlawful conduct. Before staying silent out of fear of a lawsuit, it is critical to consult with an experienced employment attorney who can evaluate the agreement, assess potential retaliation, and provide clear guidance on protected disclosures.

Conclusion

Signing a nondisclosure agreement does not mean you have surrendered your rights. Many employees are led to believe that once an NDA is in place, silence is mandatory — no matter the circumstances. That is not the law in California. You are not powerless simply because you signed a contract, especially when the issue involves workplace harassment or other unlawful conduct.

California SB 331 compliance significantly limits how employers may use confidentiality clauses in harassment, discrimination, and retaliation cases. Agreements cannot legally prevent employees from disclosing factual information about unlawful workplace behavior, nor can they shield employers from accountability. When an NDA conflicts with these protections, courts support voiding NDAs for harassment that violate public policy and statutory rights.

Equally important, the law prohibits retaliation for breaking a gag order when the disclosure concerns unlawful conduct. Employers cannot threaten, intimidate, or punish employees for engaging in protected activity, including reporting harassment or cooperating in investigations.

If you believe an NDA is being used to silence you or intimidate you after reporting misconduct, preserve all documentation — including contracts, emails, text messages, and any threats of legal action. Consulting with an experienced employment attorney can clarify what your agreement actually permits, determine whether provisions are enforceable, and protect you from unlawful retaliation. You have rights under California law, and those rights do not disappear because you signed a piece of paper.

If you have faced retaliation, contact our team today: https://www.makaremlaw.com/lp/sexual-harassment-2/