CA NDAs Are Limited
Most employers believe a signed NDA in a settlement or separation agreement locks down what the employee can say. In California, that assumption is wrong — and acting on it can make the situation significantly worse.
California’s Silenced No More Act, SB 331, operates on two separate statutory tracks. Conflating them is where employers get into trouble.
The first track is Code of Civil Procedure section 1001. It governs settlement agreements for claims filed in a civil action or administrative proceeding.
For agreements entered into on or after January 1, 2022, a settlement agreement cannot prevent or restrict disclosure of factual information related to any FEHA harassment, discrimination, or retaliation claim — not just claims based on sex.
Any provision attempting to do so is void as a matter of law.
The second track — the one most employers miss entirely — is Government Code section 12964.5. It governs separation and severance agreements and standalone non-disparagement clauses.
Under section 12964.5, any non-disparagement clause in a separation agreement must include specific statutory carve-out language notifying the employee that the agreement does not prevent them from discussing conduct they have reason to believe is unlawful. Without that language, the clause is unenforceable.
Section 12964.5 also requires that the employer notify the employee in writing of the right to consult an attorney and provide at least five business days to do so before signing. This is a condition of enforceability — not a courtesy.
What is still permitted: a provision shielding the claimant’s identity and all facts that could lead to its discovery — but only at the claimant’s request, and only when no government agency or public official is a party.
Settlement amounts may also remain confidential.
Attempting to enforce an unenforceable NDA provision is not just ineffective. It creates independent liability.
Employers using form agreements drafted before 2022, or drafted under another state’s law, are particularly exposed.
When did you last review your settlement and separation agreement templates against both CCP section 1001 and Government Code section 12964.5?
This post shares general information based on common patterns I see in California workplaces. It is not legal advice, does not create an attorney-client relationship, and outcomes depend on specific facts — no lawyer can guarantee a result. Past results do not guarantee or predict future outcomes. AI may have been used to create this post. All content reviewed by a CA attorney before publication. This post may be attorney advertising.
Michael Trust Law, APC, 703 Pier Avenue, Ste. B367, Hermosa Beach, CA 90254: michaeltrustlaw.com