Settlement discussions in these types of cases often bring up the question of confidentiality almost immediately, and many employees assume signing away the right to discuss what happened is simply a routine part of the deal. New York law actually puts firm limits on that widespread assumption, and understanding those limits changes how the negotiation itself unfolds.
Why Confidentiality Cannot Be a Default Term
Under New York’s Civil Practice Law and Rules Section 5003-b, an employer cannot include a nondisclosure term in a settlement resolving a harassment claim unless confidentiality is genuinely the complainant’s actual, freely given preference.
Why Employers Cannot Simply Assume Silence
A New York City sexual harassment lawyer reviews every proposed settlement carefully with this rule in mind, since an employer cannot simply insert a standard confidentiality clause and expect it to hold up in court without confirming that preference genuinely came directly from the employee involved.
What Happens If Confidentiality Is Preferred
When an employee genuinely prefers a confidential resolution, the law still builds in real protections before that preference becomes fully binding on either side. New York law generally requires that the confidentiality term be provided in writing, giving the complainant up to twenty-one days to consider it carefully before signing anything. This consideration period exists specifically and intentionally to prevent someone from agreeing to permanent silence while still processing the immediate pressure of ongoing settlement negotiations, when emotions and significant financial pressure often run especially high for everyone involved in the discussions.
What Rights Survive Even With Confidentiality
A properly and carefully structured confidentiality provision cannot block certain important activities regardless of what the settlement otherwise says on paper. Common carve-outs written explicitly into the law include:
- Testifying truthfully or complying with a subpoena in a related government proceeding
- Filing a formal complaint with a state or federal enforcement agency at any time
- Cooperating fully and honestly with a criminal investigation connected to the underlying conduct
- Communicating openly and freely with the Attorney General’s office about the matter
Any confidentiality provision attempting to block these specific protected activities is generally treated as legally void and unenforceable, regardless of what an employer includes in the settlement paperwork itself or how the clause is worded.
Why the Revocation Period Matters
Even after formally signing, an employee generally retains a full seven-day window to revoke acceptance of a confidentiality provision entirely if they change their mind. This revocation period functions as a genuine and important final safeguard, giving someone a real chance to reconsider once the immediate pressure of the negotiation itself has fully passed and they have had honest, unhurried time to think it through with a clearer head and some outside perspective from family or friends.
Whether This Applies to Every Type of Settlement
The specific rules that apply can depend heavily on whether a claim has already been formally filed in court or not. A New York City sexual harassment lawyer reviews which framework governs a particular settlement, since pre-litigation agreements and settlements reached after a lawsuit has been filed follow related but genuinely distinct procedural requirements under New York law. Getting this important distinction wrong can lead to a confidentiality provision that does not actually hold up in court the way an employer originally intended it to.
Getting Help Negotiating a Settlement
Confidentiality is one of the more heavily negotiated terms in any harassment settlement, and knowing exactly what New York law does and does not allow changes how that negotiation actually unfolds from start to finish. Bloom Fudali has represented NYC employees through settlement negotiations for years, making sure confidentiality terms genuinely reflect what the client actually wants rather than what an employer’s standard template happens to include by default. If you are weighing a settlement involving a confidentiality provision, reach out to talk through what the law actually requires in New York, NY.