Lesson from the Facebook ‘Suck It’ Case: Tweak Your Confidentiality Agreement
There are times when employers are just better off settling an employment lawsuit. Prolonged litigation is costly … cut your losses and move on. But it’s always wise for such settlements to include a confidentiality clause. And, as this new ruling shows, your old confidentiality clause may need a new social-media facelift …
Case in Point: After Patrick Snay, headmaster at the Gulliver Preparatory School in Florida, sued the school for age discrimination, both sides settled for an undisclosed amount. The settlement required Snay and his wife not to reveal the existence and terms of the agreement.
The judge wrote that this detailed confidentiality agreement was “central to the parties’ settlement.” If the couple disclosed information to anyone other than their attorneys or other professional advisers, the school could reduce its payout to Snay by $80,000.
Apparently because teenage girls are so good at keeping secrets, Snay decided to share the settlement information with his daughter. He said he felt he “needed to tell her something.”
Faster than you can say settlement breach, the daughter posted a celebratory message on her Facebook page announcing, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”
The school cried foul, saying the posting violated the confidentiality agreement. Snay argued that it didn’t rise to that level.
The ruling: While a lower court ruled for Snay, a Florida appeals court sided with the school, saying it could reduce the payout to Snay by $80,000. It said the daughter’s Facebook posting was “precisely what the confidentiality agreement was designed to prevent,” noting that many of her 1,200 Facebook friends were former or current Gulliver students. (Gulliver Sch., Inc. v. Snay, 2014 BL 51911, Fla. Dist. Ct. App., 2/26/14)
3 Lessons Learned …Without Having To Go To Court
- Monitor social media. In this case, keep their ears and eyes open for online breaches of the confidentiality pact saved the school district $80,000.
- Get a facelift. Look at the confidentiality provision in your standard settlement agreement to see if it includes posting on social media sites. This agreement did not and it took two courts to finally determine that disclosure on Facebook “was a clear breach.”
- Turn about face. The EEOC reported another year of high claims in FY2013 for discrimination and retaliation. To prevent your organization heading into the courtroom, make sure your leadership is receiving ongoing compliance information and training.