Written by Jessica Catlow
It seems like every day there is a new case highlighting novel and evolving issues employers confront when people disclose information via social media. The latest example involves a hapless college-age daughter in Florida that caused her father to forfeit his settlement payment from a former employer because she announced the settlement on Facebook.
The father was the headmaster at a private school and, after he was fired, he sued the school for age discrimination and retaliation. As part of a settlement agreement, the school agreed to pay the father $80,000 and his attorney $60,000. The agreement also contained the following confidentiality clause:
[T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys and other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement . . . . A breach . . . will result in disgorgement of the Plaintiff’s portion of the settlement Payments.
After settling, the daughter posted on Facebook:
Mama and Papa Snay won the case against Guillver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.
The daughter had approximately 1,200 “friends” on Facebook, many of whom were either current or former students at the school.
The school argued that her disclosure violated the agreement’s confidentiality provision and it refused to pay the father his portion of the settlement. The father admitted in his deposition that he had told his daughter that the matter was settled and that he was “happy with the results.” The appeals court in Florida agreed with the school. The court noted that the father did exactly what he had agreed not to do, and the daughter did precisely what the school wanted to prevent: disclosing to the school’s community that the father had been successful in his claims against the school.
What are the lessons learned? First, it is a reminder that one should carefully consider what he or she “shares” on Facebook, and share only those items that are truly appropriate; say his or her favorite videos of puppies and kittens doing cute things. Second, confidentiality provisions can have real value and can be drafted to have “teeth” i.e., requiring forfeiture of settlement payments in the case of breach. Doing so provides the necessary protection to employers and eliminates the requirement that the employer prove actual damages in the case of breach.