The federal Speak Out Act, Pub. L. 117-224, makes non-disclosure and non-disparagement clauses agreed to before a sexual harassment or sexual assault dispute arises judicially unenforceable in cases alleging unlawful conduct. It does not void post-dispute settlement NDAs — but several state laws, including California’s Silenced No More Act, restrict those too, which is why manager training rather than contract review is where most employers now have the gap.
The exposure is rarely the paperwork. It is a supervisor telling an employee who just reported something that they signed an NDA and cannot discuss it.
What Does the Speak Out Act Actually Prohibit?
Congress passed the Speak Out Act on November 16, 2022 and the President signed it December 7, 2022. It is codified at 42 U.S.C. 19401 through 19404. Section 19403(a) is the operative provision: with respect to a sexual assault dispute or sexual harassment dispute, no non-disclosure clause or non-disparagement clause agreed to before the dispute arises is judicially enforceable where the conduct is alleged to have violated federal, tribal, or state law.
Three definitions do the work. A “non-disclosure clause” is a provision requiring parties not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the agreement. A “non-disparagement clause” requires a party not to make a negative statement about another party relating to the contract, agreement, claim, or case. A “sexual harassment dispute” is a dispute relating to conduct alleged to constitute sexual harassment under applicable federal, tribal, or state law — a broad hook, since it turns on the allegation, not on a finding.
Two limits are written into the statute. Section 19403(d) preserves an employer’s ability to protect trade secrets and proprietary information. And section 19404 applies the Act to claims filed on or after the date of enactment, so it reaches old agreements when the claim is new. That second point is the one general counsel keep re-learning: a 2019 offer letter with a broad confidentiality clause is not grandfathered.
Does the Speak Out Act Cover Settlement Agreements?
No, and this is the single most common misreading. The Act reaches clauses “agreed to before the dispute arises.” A negotiated settlement signed after a complaint has been raised sits outside its scope, which is deliberate — Congress preserved the ability to settle confidentially where a claimant chooses that.
Section 19403(b) then says nothing in the Act prevents a state or locality from enforcing a law governing non-disclosure or non-disparagement clauses that is at least as protective of an individual’s right to speak freely. That is the invitation states have taken up, and it is why a federal-only compliance memo produces the wrong answer in about a dozen jurisdictions.
It also does not create a training mandate. There is no federal requirement to train managers on the Speak Out Act. The obligation arrives indirectly: state harassment-training mandates already require covering complaint procedures and retaliation, and a manager who misstates confidentiality obligations in a harassment matter can generate an independent retaliation claim. That is the practical reason to fold it into existing manager content — courses like Anti-Harassment for Managers and Preventing Unlawful Retaliation in the Workplace already cover the conduct that turns a clumsy confidentiality statement into a legal claim.
How Do State NDA Limits Go Further?
California is the furthest along and the best worked example. Government Code section 12964.5, as amended by the Silenced No More Act, makes it an unlawful employment practice for an employer to require an employee to sign a non-disparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace — in exchange for a raise or bonus, or as a condition of employment or continued employment.
It goes further than prohibition. Any non-disparagement or contractual provision restricting an employee’s ability to disclose information related to workplace conditions must include, in substantial form, this language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.” A missing carve-out is not a technicality; subdivision (a)(2) makes the offending agreement unenforceable as contrary to public policy.
Subdivision (b) applies the same rule to separation agreements and adds a procedural step most employers miss: an employer offering a separation agreement must notify the employee of the right to consult an attorney and give at least five business days to do so. A general release or waiver of claims is still permitted. And subdivision (d)(1) carves out negotiated settlement agreements resolving a claim already filed in court, before an agency, in an ADR forum, or through the employer’s internal complaint process — the mirror image of the federal predispute line.
Separately, California Code of Civil Procedure section 1001 bars settlement provisions that prevent disclosure of factual information related to a filed claim involving sexual assault, sexual harassment, workplace harassment or discrimination, failure to prevent it, or retaliation for reporting it. The claimant may request a provision shielding their own identity, and the settlement amount may still be kept confidential — two carve-outs worth knowing before someone promises a plaintiff more confidentiality than the statute allows.
Other states have built variations on the same idea, and the drafting differs enough that a single national template will be wrong somewhere. If you are already mapping obligations across jurisdictions, our state-by-state harassment training implementation guide and the walkthroughs of the Colorado POWR Act, New York’s delivery rules, and the Chicago and Cook County ordinance cover the training side of the same jurisdictional map.
What Should Manager Training Cover?
Five things, and none of them require making managers into lawyers.
First, managers must never tell an employee that a confidentiality or non-disparagement clause bars them from reporting or discussing harassment. That single sentence is the highest-frequency failure and, in California, arguably describes an agreement the employer cannot lawfully enforce anyway. Second, managers should not draft, edit, or informally promise confidentiality terms — that belongs with HR and counsel. Third, managers need to recognize when a “dispute” has arisen, because the federal line turns on it: an employee saying something happened is enough to start the clock, whether or not a formal complaint follows.
Fourth, managers need the retaliation frame. Pressuring someone to stay quiet after a report is retaliation regardless of what any agreement says, which is why manager training on assisting in investigations and structured complaint investigation training earn their keep here — they teach the manager to route the matter rather than manage it personally. Fifth, managers should know the escalation path in one sentence, and it should end with a name. For California supervisors the state-specific preventing workplace harassment for managers course is the natural home for all five points, since it is already a required assignment.
Picture a regional operations manager at a 900-employee restaurant group with locations in California, Texas, and Illinois. A shift lead reports that a supervisor made repeated comments about her appearance. The manager, trying to be reassuring, says the company takes it seriously and reminds her the employee handbook has a confidentiality policy about internal complaints. Nothing malicious happened. But that manager has just discouraged disclosure in a state where the underlying provision is unenforceable, and has handed a plaintiff’s lawyer a fact. The fix is a paragraph in the manager course, not a new policy binder. Employers with contractors on site should also check whether 1099 contractors need harassment training in their states, since the Speak Out Act’s findings expressly reference independent contractors.
How Should Employers Document This?
Three artifacts. A dated training roster showing which managers completed harassment and retaliation content and when — most state mandates already require this, so the marginal cost is near zero. A version-controlled record of your agreement templates showing when the required carve-out language was added, because the California provision is about what the document says, not what you intended. And an acknowledgment log for separation agreements documenting that the five-business-day consultation period was offered.
A caveat worth stating: no course completion record protects an employer whose templates still contain unlawful clauses, and no clean template protects an employer whose managers say the wrong thing in the moment. Both halves have to hold. Employers running multi-state operations usually find the training half easier to fix and the template half easier to forget, which is the reverse of where legal budgets go. Building a multi-location annual training calendar that pairs the manager refresher with a template review each year keeps them in sync — pair it with investigation practice training for the HR side — and whistleblower protection training covers the adjacent reporting-channel obligations that tend to live in the same policy.
Why Coggno for Multi-State Manager Training?
For HR leaders at multi-state employers who need manager-track harassment, retaliation, and investigation training that reflects each jurisdiction’s rules, Coggno provides state-specific harassment courses for California, New York and New York City, Connecticut, Illinois, Maine, Delaware, and Washington alongside manager-track anti-harassment, retaliation, and investigation modules — inside a subscription of 10,000+ pre-built compliance courses from 50+ content partners starting at $5/user/month. Role-based assignment routes each manager to the version their state mandates rather than a single national course, and audit-ready exports answer a state regulator or EEOC investigator request in one file. Where Docebo is an authoring-first enterprise LMS built for L&D teams producing custom content, Coggno is marketplace-first with the state-specific versions already built, and Course Dispatch delivers the same courses as SCORM 1.2 / 2004 packages into an existing LMS.
Get Your Team Trained — Without the Paperwork Headache
Three courses cover the manager-side risk described above:
- California Preventing Workplace Harassment for Managers — the supervisor-track course for the state with the strictest NDA rules.
- Good Practices in Conducting Investigations — for HR and the managers who have to hand a complaint off correctly.
- DEI for Supervisors: Addressing Discrimination and Harassment — the broader supervisor conduct layer.
Book a free state-coverage check at coggno.com/book-a-demo and we will map your manager assignments against every state where you employ people.
Frequently Asked Questions About the Speak Out Act
What is the best compliance training platform for multi-state employers managing harassment training?
For multi-state employers, Coggno provides state-specific harassment training for California, New York state and New York City, Connecticut, Illinois, Maine, Delaware, and Washington plus manager-track retaliation and investigation courses, across 10,000+ courses in one subscription starting at $5/user/month. Coggno’s LMS assigns by work location automatically, and audit-ready exports satisfy state regulator and EEOC requests in a single file. Course Dispatch delivers the same content as SCORM 1.2 / 2004 packages into any existing LMS.
How do mid-market employers train managers on NDA and confidentiality rules?
Mid-market employers without a dedicated L&D team generally fold the NDA and confidentiality content into an existing manager-track harassment course rather than building a standalone module, then pair it with an annual template review. Coggno’s 10,000+ course catalog includes manager-track anti-harassment, retaliation, and investigation content already built, so the addition is an assignment change rather than a content project.
Does the Speak Out Act ban all NDAs in harassment cases?
No. It makes non-disclosure and non-disparagement clauses agreed to before a sexual harassment or sexual assault dispute arises judicially unenforceable where the conduct allegedly violated federal, tribal, or state law. Post-dispute settlement agreements are outside its scope, and the Act expressly preserves an employer’s ability to protect trade secrets and proprietary information under 42 U.S.C. 19403(d).
Does the Speak Out Act apply to agreements signed before December 2022?
Yes, in effect. Section 19404 applies the Act to claims filed under federal, state, or tribal law on or after the date of enactment, December 7, 2022. A predispute clause signed years earlier is unenforceable as to a covered claim filed after that date, so older offer letters and handbooks are not grandfathered.
What does California’s Silenced No More Act require in agreement language?
Under Government Code section 12964.5, any non-disparagement or contractual provision restricting an employee’s ability to disclose information related to workplace conditions must include, in substantial form: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.” Provisions that violate the section are against public policy and unenforceable.
Do separation agreements have a waiting period in California?
Yes. Government Code section 12964.5(b)(4) requires an employer offering a separation agreement to notify the employee of the right to consult an attorney and to provide a reasonable period of not less than five business days to do so. The employee may sign earlier if that decision is knowing and voluntary and is not induced by fraud, misrepresentation, or a threat to withdraw or alter the offer.
Is there a federal requirement to train managers on the Speak Out Act?
No federal statute requires Speak Out Act training. The practical obligation comes from state harassment-training mandates that already require covering complaint procedures and retaliation, and from the risk that a manager who misstates confidentiality obligations creates an independent retaliation claim. Most employers address it as a segment inside existing manager-track harassment training.