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New York Employee and Severance NDA

Draft a New York employee or severance NDA under General Obligations Law 5-336, with the required notice of the worker's right to speak to agencies and counsel.

Introduction

A New York employee NDA is a confidentiality agreement between a company and a worker that protects the employer's trade secrets and confidential business information. A severance NDA is the version signed at separation, usually inside a release of claims, and it often keeps the terms of the exit private. What separates it from a commercial NDA between two businesses is who signs it: a worker cannot be forced to stay silent about unlawful conduct. In New York, General Obligations Law Section 5-336 bars concealing the facts of a discrimination, harassment, or retaliation claim in a settlement unless confidentiality is the worker's documented preference after a 21-day review. It also requires a nondisclosure provision entered after January 1, 2020 to state that the worker may speak with agencies, the Attorney General, or their attorney. DocDraft drafts a New York-compliant employee or severance NDA from your facts, with the mandatory carve-out built in, and attorney review is available before anyone signs.

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Key Things to Know

  1. 1

    Section 5-336 covers settlements of covered claims. An employer cannot include a term that prevents disclosure of the underlying facts of a discrimination, harassment, or retaliation claim unless confidentiality is the complainant's own preference.

  2. 2

    New York mandates carve-out language. A nondisclosure provision in an employment contract entered after January 1, 2020 must state that it does not prohibit the worker from speaking with law enforcement, the EEOC, the State Division of Human Rights, the Attorney General, a local human rights commission, or their attorney.

  3. 3

    Confidentiality has to be the worker's documented choice. A confidentiality term over a covered claim can only stand if the complainant prefers it, memorialized after a 21-day consideration period.

  4. 4

    Severance releases have extra limits. A New York release resolving a covered claim cannot require liquidated damages, a forfeiture of consideration, or an affirmative statement that no discrimination occurred.

  5. 5

    The scope is broad. The restriction reaches discrimination, harassment, and retaliation, not sexual harassment alone.

  6. 6

    It applies to both onboarding and separation. A day-one NDA needs the mandated agency-and-counsel notice, and a settlement or severance release is separately limited on concealing the facts of a covered claim.

  7. 7

    Trade secrets remain protectable. Section 5-336 limits silencing unlawful conduct, not the protection of legitimate trade secrets and confidential business information, and the federal Defend Trade Secrets Act notice still belongs in the agreement.

Key decisions before you file

Before you file a Employee and Severance NDA in New York, a few decisions shape the document: which option to choose and what each one means. The Employee and Severance NDA guide walks through them.

Open the Employee and Severance NDA guide

Customize your Employee and Severance NDA Template with DocDraft

NEW YORK EMPLOYEE NON-DISCLOSURE AGREEMENT

This Employee Non-Disclosure Agreement ("Agreement") is entered into as of [DATE] by and between [COMPANY NAME] ("Company") and [EMPLOYEE NAME] ("Employee"). This Agreement is governed by New York law.

  1. PURPOSE In the course of Employee's employment, Employee will have access to confidential and proprietary information of the Company. Employee agrees to protect that information on the terms below.

  2. CONFIDENTIAL INFORMATION "Confidential Information" means non-public information the Company treats as confidential, including trade secrets, business and financial data, customer and pricing lists, methods, processes, software, and other proprietary information disclosed to or learned by Employee. Confidential Information does not include information that is or becomes public through no fault of Employee, that Employee lawfully knew before employment, or that is independently developed without use of the Company's information.

  3. OBLIGATIONS Employee agrees to use Confidential Information solely for the benefit of the Company, to not disclose it to any third party without authorization, and to return or destroy all Confidential Information on request or at the end of employment.

  4. PROTECTED DISCLOSURES (NEW YORK, GEN. OBLIG. LAW SECTION 5-336) As required by New York General Obligations Law Section 5-336, nothing in this Agreement prohibits Employee from speaking with law enforcement, the Equal Employment Opportunity Commission, the New York State Division of Human Rights, the Attorney General, a local commission on human rights, or an attorney retained by Employee. Nothing in this Agreement limits or prevents Employee from disclosing or discussing conduct Employee reasonably believes to be unlawful, including discrimination, harassment, or retaliation, or from exercising any right that cannot lawfully be waived. Consistent with the federal Speak Out Act, this Agreement does not restrict Employee from speaking about a dispute involving sexual assault or sexual harassment.

  5. SETTLEMENT AND SEVERANCE RELEASES (SECTION 5-336) If this Agreement is part of, or accompanies, a settlement or severance release resolving a claim whose factual foundation involves discrimination, harassment, or retaliation, it does not and cannot prevent disclosure of the underlying facts and circumstances of that claim unless keeping that information confidential is Employee's own preference. Any such confidentiality term is subject to Employee's 21-day period to consider it and is effective only if Employee documents that preference. Such a release does not require Employee to pay liquidated damages, to forfeit the consideration paid, or to affirmatively state that no discrimination occurred.

  6. DEFEND TRADE SECRETS ACT NOTICE Under the Defend Trade Secrets Act (18 U.S.C. Section 1833(b)), an individual is immune from criminal or civil liability for disclosing a trade secret (i) in confidence to a government official or attorney solely to report or investigate a suspected violation of law, or (ii) in a complaint or other document filed under seal in a lawsuit or other proceeding.

  7. NO OTHER RESTRICTIONS ON RIGHTS This Agreement does not waive Employee's right to file a charge, testify, or participate in an investigation, and does not require Employee to notify the Company before doing so.

  8. TERM AND ENFORCEMENT Employee's obligations as to Confidential Information continue during and after employment for as long as the information remains confidential. The Company may seek injunctive relief and any other remedy available at law for a breach, subject to the protected disclosures above.

  9. GENERAL This Agreement is governed by New York law. If any provision is unenforceable, the remaining provisions stay in effect. This Agreement is the entire understanding between the parties on this subject.

[COMPANY NAME] By: [SIGNATURE] Name/Title: [NAME AND TITLE] Date: [DATE]

EMPLOYEE [SIGNATURE] Name: [EMPLOYEE NAME] Date: [DATE]

New York Requirements for Employee and Severance NDA

New York General Obligations Law Section 5-336

Draft a New York employee or severance NDA under General Obligations Law 5-336, with the required notice of the worker's right to speak to agencies and counsel.

Frequently Asked Questions

An employee NDA is a contract in which a worker agrees to keep the employer's confidential information private, usually signed at hire. A severance NDA is signed at separation, generally inside a release of claims, in exchange for severance pay, and it often keeps the exit terms private too. In New York both are governed by General Obligations Law Section 5-336, which limits confidentiality over discrimination, harassment, and retaliation and requires specific notice language in nondisclosure provisions.

General Obligations Law Section 5-336 requires that any nondisclosure provision in an employment contract entered after January 1, 2020 notify the employee that it does not prohibit them from speaking with law enforcement, the Equal Employment Opportunity Commission, the New York State Division of Human Rights, the Attorney General, a local commission on human rights, or an attorney the employee retains. Without that notice the provision is not compliant, so DocDraft includes it by default in a New York agreement.

Only if the worker prefers it. Section 5-336 bars an employer from including any term that prevents disclosure of the underlying facts of a discrimination, harassment, or retaliation claim, unless confidentiality is the complainant's own documented preference. That preference is memorialized after a 21-day period to consider the term. The employer cannot make secrecy a condition it imposes.

When a settlement or severance term over a covered claim would keep the facts confidential, New York requires that the worker be given 21 days to consider whether confidentiality is genuinely their preference before that term can take effect. The point is that any confidentiality has to be the complainant's informed choice, documented as such, rather than a clause the employer inserts and pushes through.

A release resolving a discrimination, harassment, or retaliation claim cannot require the worker to pay liquidated damages for a breach of confidentiality, cannot force a forfeiture of the consideration paid, and cannot make the worker affirmatively state that no discrimination occurred. These limits under Section 5-336 keep an employer from using penalty terms to pressure a departing worker into silence.

Yes. Section 5-336 reaches any claim whose factual foundation involves discrimination, harassment, or retaliation, which is broader than the federal Speak Out Act's focus on sexual assault and sexual harassment. A New York employee or severance NDA has to leave those disclosure rights open across that full range of conduct, not just sexual harassment.

Yes. Section 5-336 limits confidentiality over unlawful workplace conduct, not the protection of legitimate confidential information. A New York employee or severance NDA can still protect trade secrets, client and pricing data, and other genuine proprietary information, and it should include the federal Defend Trade Secrets Act immunity notice like any well-drafted NDA.

Severance is usually offered in exchange for signing a separation and release agreement, so declining can mean forgoing the payment. You are not required to sign, and any confidentiality over a discrimination or harassment claim must be your own documented preference after a 21-day period, not something the employer imposes. Reviewing the agreement with an attorney before signing is an option DocDraft makes available.