What happens if a US NDA leaves out the Defend Trade Secrets Act notice?

Under 18 U.S.C. § 1833(b)(3)(C), an employer that fails to give the immunity notice may not be awarded exemplary damages or attorney's fees in a trade secret action under the Act against an employee who did not receive it. The notice is required by § 1833(b)(3)(A) in any contract with an employee governing the use of a trade secret or other confidential information, and § 1833(b)(4) extends "employee" to contractors and consultants.

Can a US NDA cover future harassment claims?

Not enforceably. The Speak Out Act, 42 U.S.C. § 19403(a), provides that with respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure or nondisparagement clause agreed to before the dispute arises is judicially enforceable where the conduct is alleged to have violated federal, tribal or state law. Section 19403(d) preserves the parties' ability to protect trade secrets and proprietary information.

Does California require specific wording in a confidentiality clause?

Yes, where the clause restricts disclosure of workplace conditions. California Government Code § 12964.5(a)(1)(B)(ii) requires the provision to include, in substantial form, a statement that nothing in the agreement prevents the employee from discussing or disclosing information about unlawful acts in the workplace such as harassment or discrimination. Under § 12964.5(a)(2), an agreement that violates the subdivision is contrary to public policy and unenforceable.

Non-Disclosure Agreement (NDA) in the US

A United States NDA carries one federal drafting requirement with a real financial consequence: the Defend Trade Secrets Act requires a whistleblower immunity notice in any agreement governing the use of trade secrets or confidential information, and an employer that omits it cannot recover exemplary damages or attorney's fees against that person. The Speak Out Act separately makes pre-dispute confidentiality clauses unenforceable in sexual assault and harassment disputes, and California prescribes exact carve-out wording.

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Governing law

Trade secret protection is state law supplemented by the federal Defend Trade Secrets Act, which is also the source of the mandatory immunity notice that must appear in confidentiality agreements.

18 U.S.C. § 1833(b)

What a non-disclosure agreement (nda) has to contain in the US

An employer must give notice of the trade secret whistleblower immunity in any contract with an employee that governs the use of a trade secret or other confidential information.
18 U.S.C. § 1833(b)(3)(A)
An employer that does not comply may not be awarded exemplary damages or attorney's fees in an action under the Act against an employee who was not given the notice.
18 U.S.C. § 1833(b)(3)(C)
For this purpose "employee" includes any individual performing work as a contractor or consultant, so contractor and consultant NDAs need the same notice.
18 U.S.C. § 1833(b)(4)
In a sexual assault or sexual harassment dispute, no nondisclosure or nondisparagement clause agreed to before the dispute arises is judicially enforceable where the conduct is alleged to have violated federal, tribal or state law.
Speak Out Act, 42 U.S.C. § 19403(a)
A California provision restricting an employee's ability to disclose information about workplace conditions must include, in substantial form, the sentence: "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." An agreement in violation is unenforceable.
Cal. Gov. Code § 12964.5(a)(1)(B)(ii) and (a)(2)

Form, notarisation and registration

The federal immunity notice may be given in the agreement text or by cross-reference to a policy document provided to the employee setting out the employer's reporting policy for suspected violations of law.
18 U.S.C. § 1833(b)(3)(B)

What catches drafters out

A California settlement agreement may not restrict disclosure of factual information relating to a claim filed in a civil or administrative action concerning sexual assault, sexual harassment, workplace harassment or discrimination, or retaliation for reporting it.
Cal. Code Civ. Proc. § 1001(a)
The Speak Out Act does not displace protection of confidential business information: it expressly does not prohibit an employer and an employee from protecting trade secrets or proprietary information.
42 U.S.C. § 19403(d)