The open questions

1. Does General Obligations Law § 5-336 apply before a claim is filed?

The issue. Everyone treats § 5-336 as a settlement statute. If it also governs an ordinary severance agreement offered before anyone has asserted anything, then a great many routine agreements are non-compliant — and under subdivision 3, non-compliance voids the release.

For the broader reading. Subdivision 1(a) reaches “any settlement, agreement or other resolution of any claim.” There is no “filed,” “asserted,” “pending” or “commenced.” The statute says “complainant” throughout, never “plaintiff.” And the Legislature plainly knew how to write a filed-claim-only statute, because it wrote one at the same time: CPLR 5003-b sits in Article 50, speaks of the “plaintiff,” and enumerates litigation vehicles. Subdivision 2 reaches the pre-dispute case on any reading: it voids a future-claim nondisclosure provision in any agreement with an employee, potential employee or independent contractor entered into on or after January 1, 2020 unless it carries the six-channel notice (law enforcement, the EEOC, the State Division of Human Rights, the Attorney General, a local human rights commission, and the employee’s own lawyer). Subdivision 3 may reach it too: it is keyed to a “release,” which is what a severance agreement contains, but whether a release alone is enough to trigger it is unclear.

Against. The section is captioned and structured around resolving claims, sits among settlement provisions, and was enacted in the same subpart as CPLR 5003-b as part of a package aimed at settlements of harassment claims. Reading it to govern every severance agreement that touches a factual situation involving discrimination sweeps in agreements no one thought it covered.

Where it stands. Unresolved, and thinly litigated. Which court would decide it depends on where the case is filed — see which court decides my case. No New York appellate decision construes § 5-336 at all, and the section carries no Notes of Decisions. The seven federal district court decisions citing it do not decide the question. The one useful data point is Hadzijic v. Art Food LLC, 2025 WL 2886104 (S.D.N.Y. Oct. 10, 2025), adopted, 2026 WL 102895 (S.D.N.Y. Jan. 14, 2026), which arose from a mediation term sheet settling a pending federal lawsuit and holds that the trigger is the NDA rather than the settlement: including or agreeing to include a confidentiality obligation “by the terms of GOL § 5-336 is a prerequisite to its applicability,” and it is the agreement containing the condition of confidentiality that carries the waiting and revocation periods.

Our view. Hadzijic has it right, and its reasoning answers the pre-litigation question by implication: if what triggers the statute is the presence of a confidentiality term in an agreement resolving a discrimination, harassment or retaliation claim, then nothing turns on whether a complaint has been filed. A severance agreement offered to someone who has complained internally about harassment, containing an NDA and a general release, is squarely within the text. We would not state that as settled — but an employer relying on the narrower reading is relying on a structural inference against the words the Legislature used.

2. Is McLaren Macomb still going to be the law next year?

The issue. McLaren Macomb holds that offering a severance agreement with broad confidentiality and non-disparagement terms violates Section 8(a)(1), whether or not the employee signs. It is the only authority reaching those clauses in a case with no discrimination in it.

Its status today. Good law. No Board decision has overruled or modified it and no court has vacated it. The Sixth Circuit, the only court of appeals to review it, enforced the Board’s order under the older standard and declined to decide whether the Board was right to abandon that standard.

Why that may not last. The General Counsel rescinded GC Memo 23-05, the memorandum interpreting it, in February 2025. The Board lost its quorum in late January 2025 and did not regain one until two members were sworn in on January 7, 2026. With the Senate’s confirmation of James Macy (R) and David Prouty (D) on August 7, 2026, the Board now has a three-to-one Republican majority, which satisfies the convention that overturning precedent takes a three-member majority. On August 26, 2026, General Counsel Crystal S. Carey issued Memorandum GC 26-04, which lists McLaren Macomb among the precedents she has asked the Board to overrule. In Valley Radiology, P.A., her office’s answering brief asks the Board to replace it with a standard finding a proffer unlawful only where the agreement contains an explicit waiver of Section 7 rights that is not narrowly tailored, and in the alternative to restore the two 2020 decisions McLaren Macomb overruled, Baylor University Medical Center and International Game Technology.

The limit that survives either way. Section 7 protects “employees.” Supervisors and managers are excluded by §§ 2(3) and 2(11), so McLaren Macomb never reached executive severance agreements. That is why the agreements handed to executives routinely carry terms that would be unlawful two levels down.

Our view. Do not build a severance strategy on McLaren Macomb for a client above the supervisory line, because it never applied there. For a client below it, the decision is law today and a proffer made today is measured by today’s law — but any advice about what an employer may do going forward should say plainly that this is expected to change.

3. Does release-conditioned severance offset a WARN claim?

The issue. Labor Law § 860-g(4)(b) reduces an employer’s WARN liability by “any voluntary and unconditional payments made by the employer to the employee that were not required to satisfy any legal obligation.” Employers routinely assume severance offsets WARN pay. The statutory text says something narrower.

The argument that it does not offset. Severance conditioned on signing a release is, by definition, conditional — the employee gets nothing without signing. And severance owed under a severance plan, an employment agreement or a policy is “required to satisfy [a] legal obligation.” Each clause independently defeats the offset. The provision is a near-verbatim copy of 29 U.S.C. § 2104(a)(2)(B), so federal authority construing the phrase transfers directly.

The argument that it does. The employer was never legally obliged to offer severance at all; the condition attaches to the release, not to the payment’s character; and reading the clause narrowly produces a double recovery the offset provision was written to prevent — a concern the Legislature showed it had when it added subsections (4)(d) through (f) to cross-credit federal and administrative recoveries.

Where it stands. Undecided in New York. Section 860-g carries three Notes of Decisions and none resolves it.

Our view. The text is on the employee’s side and the words are not ambiguous: “unconditional” means unconditional, and a payment available only in exchange for a signature is not. The practical point matters more than the doctrinal one, though. A general release will extinguish a New York WARN claim — Article 25-a has no anti-waiver clause, no non-alienability provision and no approval requirement, unlike Labor Law § 595, Workers’ Compensation Law § 32 and the FLSA. So the WARN claim is one a client routinely signs away for the very severance the employer will later argue offsets it. Value it before the signature, not after.

4. Can a pre-suit severance release waive an FLSA claim?

The issue. Cheeks is cited for the proposition that FLSA claims cannot be settled without court or Department of Labor approval. Read that way it would make every severance release of wage claims ineffective. That is not what the case holds.

What Cheeks actually decides. A Rule 41 question. Stipulated dismissals with prejudice settling a filed FLSA action require approval. The court drew the line itself: the earlier cases “all arise in the context of whether a private FLSA settlement is enforceable. The question before us, however, asks whether the parties can enter into a private stipulated dismissal” (796 F.3d at 204).

What governs the pre-suit release instead. Brooklyn Savings Bank and D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946), which Cheeks read as establishing that an employee may not waive the right to recover liquidated damages and may not privately settle whether the Act covers them (796 F.3d at 203). Brooklyn Savings is the closer analogue on its facts: a release given two years after the employment ended, with no litigation pending, in exchange for the computed overtime — and it was not enforced.

What is left open. Whether a private pre-suit release settling a bona fide dispute over hours worked or rate of pay is enforceable. Cheeks expressly reserved it (796 F.3d at 203–04), canvassing Lynn’s Food Stores against Martin v. Spring Break ’83 Productions without choosing. Note also that out-of-circuit disagreement with Cheeks has been accumulating since 2022.

Our view. Cite Cheeks for what it holds and Brooklyn Savings for the release. On the reserved question, the better reading is that a genuine dispute over hours or rate may be compromised while liquidated damages and coverage may not, because that is the line the Supreme Court cases actually draw and it leaves the anti-waiver rule doing the work it was meant to do. And keep the state-law asymmetry in view: New York has no analogue to any of this, so a release does reach New York Labor Law wage claims. Where a client has both, the federal claim carries the leverage.

5. Do the liberal-construction rules change how a release of a State or City age claim is judged?

The issue. The Older Workers Benefit Protection Act checklist governs only the federal age claim; a release that fails it is unenforceable as to that claim “irrespective of the validity of the contract as to other claims” (Oubre). The State and City age claims are left to New York law, and New York law treats their release as a contract.

The settled rule. A release of a State Human Rights Law claim is enforced if it is clear and unambiguous and knowingly and voluntarily entered into; it need not mention discrimination, and the absence of counsel is less important than the opportunity to consult counsel (Skluth v. United Merchants & Mfrs., 163 A.D.2d 104, 106–07 (1st Dep’t 1990), leave to appeal granted, 76 N.Y.2d 711, appeal withdrawn, 79 N.Y.2d 976 (1992)). The Fourth Department goes further: it expressly refuses to apply either the federal checklist or “the totality of the circumstances standard applicable to Federal discrimination claims” to a release of an Executive Law age claim, and holds the employee to a “plain and unambiguous” release he did not understand or show to a lawyer (Goode v. Drew Bldg. Supply, 266 A.D.2d 925 (4th Dep’t 1999)). The limit is Johnson v. Lebanese Am. Univ., 84 A.D.3d 427 (1st Dep’t 2011): still contract law, but a release reaching unknown claims must be “fairly and knowingly made,” and tying pay the employee says he had already earned to the release could be “overreaching.” The court reinstated State and City claims on that basis.

What changed. Since 2019 the State law must be “construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws … have been so construed,” with exceptions and exemptions “construed narrowly in order to maximize deterrence of discriminatory conduct” (Exec. Law § 300). The City law says the same in stronger terms, for its “uniquely broad and remedial purposes” (Admin. Code § 8-130(a)–(b)). We have found no appellate decision applying either provision to the validity of a release.

Against a change. A release is a contract governed by general contract law, not a “provision” of the Human Rights Law to be construed, and it is not an “exception” or “exemption” from the statute. Johnson decided City claims years after the City’s liberal-construction rule took effect and still analyzed the release as a contract, though it did not discuss § 8-130.

For a change. A waiver is the instrument by which an employer escapes the statute’s remedies, so the rule for waivers is part of how the statute is applied. A rule meant to “maximize deterrence” is hard to square with holding an employee to a release he did not understand, signed without a real chance to consult counsel, as Goode allows. And both provisions free New York courts from following federal construction, which removes any reason to treat the federal totality test as the ceiling.

Our view. The contract rule survives for a clear release, negotiated or at least considered with time to consult counsel, and paid for with money the employee was not already owed. Where those conditions fail — earned pay held hostage to the release, no real time, no real chance to consult a lawyer — Johnson’s “fairly and knowingly made” requirement is where the liberal-construction rules should do their work, and a court construing the City law in particular should decline to follow Goode’s strict contract approach.

Cases mentioned here but not in the library

These decisions are cited above but not yet reproduced in our case library. The full citations, so you can pull them yourself:

• Hadzijic v. Art Food LLC, No. 23-cv-10357, 2025 WL 2886104 (S.D.N.Y. Oct. 10, 2025), adopted, 2026 WL 102895 (S.D.N.Y. Jan. 14, 2026) — an unreported report and recommendation, available on the docket through PACER. It is the only decision we have found addressing what triggers Gen. Oblig. Law § 5-336.
• Skluth v. United Merchants & Mfrs., Inc., 163 A.D.2d 104, 559 N.Y.S.2d 280 (1st Dep’t 1990).
• Goode v. Drew Bldg. Supply, Inc., 266 A.D.2d 925, 697 N.Y.S.2d 417 (4th Dep’t 1999).
• Johnson v. Lebanese Am. Univ., 84 A.D.3d 427, 922 N.Y.S.2d 57 (1st Dep’t 2011).