Is the confidentiality clause in my severance agreement enforceable?
It depends on what the agreement resolves. If your situation involves discrimination, harassment or retaliation, New York allows a confidentiality term only if secrecy is your preference, with its own consideration and revocation periods, and some common terms void the entire release. A confidentiality or non-disparagement clause agreed to before a sexual harassment or assault dispute arose is not enforceable at all. And if you are not a supervisor, federal labor law may reach these clauses even with no discrimination involved.
New York’s rules (Gen. Oblig. Law § 5-336)
Where the factual foundation involves discrimination, harassment or retaliation, a confidentiality term is permitted only if secrecy is your preference; that preference must be put in a signed agreement; the term must be in plain English; you get up to 21 days to consider it; and you have at least 7 days to revoke (§ 5-336(1)).
The terms that void the release
Under subdivision 3, no release is enforceable if the agreement resolving the claim:
- requires you to pay liquidated damages for breaching a confidentiality or non-disparagement clause;
- requires you to forfeit the money for breaching one; or
- contains “any affirmative statement, assertion, or disclaimer by the complainant that the complainant was not in fact subject to unlawful discrimination.”
That last one voids the boilerplate line saying you were never discriminated against.
What you can always say
No agreement may stop you from filing with or speaking to the EEOC or a state or local agency, law enforcement, the Attorney General, or your own lawyer (29 C.F.R. § 1625.22(i); Gen. Oblig. Law § 5-336(1)(c), (2)).
Sexual harassment and assault
A confidentiality or non-disparagement clause agreed to before a sexual assault or sexual harassment dispute arose is not judicially enforceable (42 U.S.C. § 19403(a)).
Workers who are not supervisors
A severance agreement whose confidentiality and non-disparagement terms would tend to restrain employees’ rights under Section 7 of the National Labor Relations Act is unlawful, and merely offering it violates the Act (McLaren Macomb). Section 7 protects “employees,” so supervisors and managers are outside it.
What is unsettled?
- Does § 5-336 apply before a claim is filed? The text reaches “any settlement, agreement or other resolution of any claim,” but no New York appellate court has decided it. See the open questions.
- How long will McLaren Macomb last? It is good law today, but the Board now has a majority that could overrule it, and the General Counsel has asked it to. See the open questions.
What to ask for
- Mutual non-disparagement, naming who at the company it binds.
- Carve-outs for agencies, subpoenas, discussing wages with coworkers, and enforcing the agreement.
- Removal of any “no discrimination occurred” recital, any liquidated-damages clause and any forfeiture clause.
Before you sign: what are your claims worth?
A release trades your claims for the severance. If you think you may have a claim, the New York employment case evaluator reviews your answers and documents the way I review a new matter and gives you a realistic pre-suit estimate, so you can compare what you would be giving up with what the agreement pays. It charges only the actual cost of running the analysis, never more than $5. Afterwards you can choose whether to send it to me for review.
New York severance agreements: the full guide
This page is general information about New York and federal law, last reviewed September 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Dollar figures, deadlines and pending legislation change. If you are holding an agreement with a deadline on it, speak with a lawyer now.