New York Non-Disclosure Agreement (NDA) Review
New York is the clearest holdout from the Uniform Trade Secrets Act, so confidentiality disputes here turn on common law, the contract itself and the federal Defend Trade Secrets Act. At the same time New York has some of the most detailed rules in the country on NDAs in discrimination, harassment and retaliation settlements, tightened again in November 2023. Both strands shape what a New York NDA can really require.
Trade-secret law
Common law
Bundled non-compete
Enforceable if reasonable
Confidentiality & trade secrets in New York
New York is a common-law trade-secret state (it did not adopt the Uniform Trade Secrets Act), with the federal Defend Trade Secrets Act applying on top. A reasonable NDA is enforceable, but courts examine scope closely, so an over-broad definition with no exclusions is a real weakness.
Watch for a non-compete inside the NDA
Enforceable under a strict reasonableness test protecting legitimate interests. Broad bans have been proposed but not enacted statewide.
A confidentiality agreement should protect information, not restrict who you can work for. If an NDA in New York also tries to bar you from competitors or from soliciting contacts, treat that as a separate restrictive covenant and judge it by New York's non-compete rules above.
How does New York decide what counts as a trade secret?
Without a uniform act, New York courts apply the Restatement factors, as the Court of Appeals did in Ashland Management v. Janien (1993): how widely the information is known inside and outside the business, the measures taken to guard it, its value, the effort spent developing it, and how easily others could duplicate it. A contractual NDA can protect confidential information beyond that definition, but overbroad terms still invite challenge.
Non-solicitation clauses are judged under BDO Seidman v. Hirshberg (1999), which allows restricting clients developed with the employer's resources but not clients the employee brought in independently. As of 2026, a statewide non-compete ban has not been enacted: Governor Hochul vetoed one in December 2023, and a narrower bill was reintroduced in 2026.
What does GOL 5-336 require in a New York settlement?
General Obligations Law 5-336 bars terms preventing disclosure of the underlying facts of a discrimination, harassment or retaliation claim unless confidentiality is the complainant's preference. The complainant gets up to 21 days to consider and at least 7 days to revoke. Since November 17, 2023, a release is unenforceable if it requires liquidated damages or forfeiture for breaching a nondisclosure or nondisparagement clause, or a statement that no discrimination occurred. CPLR 5003-b keeps the 21-day period mandatory for litigated claims.
Separately, New York's trade secret claims usually travel together with a federal Defend Trade Secrets Act count, which supplies a three-year discovery-based limitations period and limits injunctions that would simply stop you taking a new job.
New York sources checked 2026-10-09: N.Y. General Obligations Law 5-336 (NY Senate) · Jackson Lewis: Governor Hochul vetoes New York non-compete ban · Sullivan & Cromwell: New York Senate reintroduces non-compete bill (April 2026). Laws change; confirm the current rule before relying on it.
What ClauseAudit checks in a New York NDA
- Definition of "confidential information", narrow, or everything?
- The four standard exclusions (public, already known, independently developed, third-party)
- Duration, a defined term, or a perpetual obligation?
- A "residuals" clause allowing use of what is remembered
- Any bundled non-compete or non-solicitation, judged by New York law
- Return/destruction obligation and one-sided injunctive relief
New York NDA FAQ
Is an NDA enforceable in New York?
Yes, a reasonable confidentiality agreement is generally enforceable in New York, backed by common-law trade-secret protection and, at the federal level, the Defend Trade Secrets Act. What matters is scope: an NDA with an over-broad definition of "confidential information," no standard exclusions, or a perpetual term is far weaker than it looks and worth narrowing.
Can an NDA include a non-compete in New York?
NDAs sometimes bundle in non-compete or non-solicitation language, and in New York a reasonable non-compete can be enforceable, Enforceable under a strict reasonableness test protecting legitimate interests. Broad bans have been proposed but not enacted statewide. A confidentiality agreement should not quietly restrict who you can work for, so flag any non-compete inside it.
What makes an NDA fair in New York?
A sound NDA defines confidential information narrowly, includes the standard exclusions (public information, what you already knew, what you independently develop, and what a third party gives you), has a defined term rather than a perpetual one, and does not include a broad "residuals" clause or a hidden non-compete. ClauseAudit checks each of these against New York law.
Can New York enforce a non-compete buried in an NDA?
New York is one of 34 jurisdictions where a non-compete is generally enforceable if reasonable in duration, geography and scope. Enforceable under a strict reasonableness test protecting legitimate interests. Broad bans have been proposed but not enacted statewide. Confidentiality obligations are a separate question and are not affected by any of that, which is why a restraint tucked into an NDA deserves reading on its own terms rather than as part of the secrecy clause.
If the restriction in my New York agreement is too broad, what happens?
Courts may rewrite an overbroad restriction to something reasonable. That cuts against you: an employer has little to lose by drafting wide, because a court can pare the clause back rather than discard it. Negotiating the wording before signing matters more here than in states where an overbroad clause simply fails.
Does it matter which state's law the agreement names?
It can, because New York's neighbours do not all agree: Massachusetts (limited). Which law applies turns on the governing-law and venue clauses and on where the work is actually done, so those two clauses are worth reading before signing an NDA.
Can a New York NDA stop me talking to the Attorney General or the EEOC?
No. Under GOL 5-336, confidentiality provisions covering future discrimination claims in agreements with employees, applicants and independent contractors are void unless they state that the worker may still speak with law enforcement, the EEOC, the state Division of Human Rights, the Attorney General, a local human rights commission or an attorney.
Does the New York settlement law apply to independent contractors?
Yes. The 2023 amendments extended GOL 5-336 to independent contractors as well as employees and potential employees, so a contractor settling a discrimination, harassment or retaliation claim gets the same complainant-preference rule, the same 21-day review period and the same 7-day revocation window that an employee would receive.
Asked to sign an NDA in New York?
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How neighbouring states treat restrictive covenants
Nationally: 4 jurisdictions treat employee non-competes as void, 13 allow them only in limited circumstances, 34 generally enforce them if reasonable.
New York rules summarized as of October 2026; laws change. This is automated educational information, not legal advice. ClauseAudit verifies current New York law when you run your NDA, and you should confirm anything critical with a qualified attorney.