Yes, Disclosures On Social Media Are Still Disclosures

You can’t make this stuff up.

Have you read this one?  I can’t blame you if you haven’t.  Between the serious and tragic stories dominating the news from Malaysia and Russia, this little employment law nugget snuck into the newsroom.   Put simply, baby girl’s typing fingers ultimately cost daddy $80,000.

I’m Getting Some New Money

The former headmaster of a Florida preparatory school had started an age discrimination and retaliation lawsuit against his former employer.   The parties settled the lawsuit, and the school paid various sums to its former employee, including an $80,000 payment.  The settlement agreement contained a confidentiality provision, which provided that the employee could not disclose the existence or terms of the settlement agreement to anyone “except his attorneys or other professional advisors or spouse.”

I’m Getting A Nice Vacation With My New Money

The former headmaster is also a father, and daddy has a college-age daughter who clearly is not “his attorneys or other professional advisors or spouse.”   Yet, the daughter posted the following on Facebook immediately after daddy’s settlement agreement was signed:  “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  Suck it.”


There Goes My New Money

The school notified daddy employee that he had breached the settlement agreement based on his daughter’s Facebook post, and also informed his attorney that the school would pay the attorneys’ fee portion of the settlement but not the payment that had been allocated for daddy employee.    So daddy employee filed papers with the court to enforce the settlement agreement’s payment obligation, which resulted in a whole hearing being held in court, and which then resulted in the court determining that daddy employee’s comments to his daughter, and his daughter’s Facebook post, did not constitute a violation of the confidentiality provision.

But the Florida appellate court felt differently, noting at the top of its decision on appeal:  “The school maintains Snay is precluded from enforcing the agreement because he violated a material term, the non-disclosure clause, when he disclosed to his daughter that his case against Gulliver was settled and he was happy with the result.  We agree with the school[.]”    Noting that the Facebook post served to communicate the settlement to the daughter’s 1200 friends, the court ended its decision as it started:

“[B]efore the ink was dry on the agreement, and notwithstanding the clear language of section 13 mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do.  His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”

Employer Take Away:   What should you as an employer take away from this development?

I’m going to try something different today, and give some takeaways to both sides; your company, as well as your employees:

1.         Employer –>  Make sure any settlement agreements have a confidentiality provision, make sure they limit precisely who can learn information about the settlement, and consider even making an express reference to social media.

2.         Parent/Employee –>  You really need to tell your kids about your settlement?

3.         Employer –>  Monitor compliance with your settlement agreement, as you are likely giving significant monetary consideration in exchange for, among other things, um, quiet.

4.         Parent/Employee –>  If the answer to # 2 above is “yes,” tell your kids to keep their mouths shut about mommy’s and daddy’s work, and to go back to using social media for the purpose of their ridiculous selfies.

5.         Employer –> Social media impacts everything when it comes to your employees, from hire to fire (and even beyond).   Make sure the applicable social media implications and risks are considered and addressed in all of your actions and documents.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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