Think Before You Post – Employment Discrimination and Confidentiality
Settlements are the grease that makes the wheels of justice run. Without plea bargains, the criminal court system would grind to a halt. The civil justice system depends on reliable monetary settlements as well. Lawyers are used to working within this framework, but every so often, some sand gets thrown in the machinery, and it grinds to a halt.
With most civil settlements, particularly those involving employment law, confidentiality is key. Employers don’t want others knowing the payout made to buy peace. Exceptions may be specified for counsel and tax advisors, but generally litigants cannot discuss the facts or terms of a settlement even with a spouse unless the spouse agrees to maintain confidentiality as well.
In the old days when oral rumors were the rule, it might be tough to prove a breach of confidentiality. But in the 21st century, we have social media to establish beyond a reasonable doubt who spilled the beans.
In the age discrimination claim of Patrick Snay v. Gulliver Preparatory School, it was the daughter of the plaintiff who posted to her 1,200 Facebook friends: “Mama and Papa Snay won the case against Gulliver. . . . Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” The daughter was a student at the school her father had sued, so her post broadcast to current and former students that Gulliver had lost its case with its former headmaster.
Four days after signing an $80,000 settlement agreement, the school cried foul and refused to pay. Now over two years later and after two court appeals, Florida’s Third District Court of Appeal sided with the school and refused to enforce the settlement agreement. “Snay violated the agreement by doing exactly what he promised not to do. . . . His daughter then did precisely what the confidentiality agreement was designed to prevent,” said Judge Linda Ann Wells in her ruling on February 26, 2014.
Maybe this case will go back to court, and how much impetus will there be for the school to offer a voluntary settlement? Lots of work for everyone involved just because of a slip of the mouse.
Always take a confidentiality clause seriously and never document any breach on social media.
Christina Hausner is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, PA. She received her law degree from Duquesne University School of Law and has practiced in the area of employment law for over 25 years