Most employers, often upon the advice of counsel, shy away from monitoring their employees' social media activity. Earlier this year, however, an employer was able to use a Facebook status update posted by a former employee's daughter to recoup a large chunk of a lawsuit settlement paid out to the employee.
In February 2014, the Florida Third District Court of Appeals threw out a settlement between a local preparatory school and its former headmaster. The court ruled that the headmaster and his daughter breached the confidentiality terms of the settlement agreement when the daughter bragged about the settlement on social media. In 2010, the 69-year-old headmaster sued his former employer for age discrimination after his contract was not renewed. The case settled in November 2011. The settlement agreement entered into by the parties included a confidentiality clause that required the headmaster and his wife to refrain from discussing the settlement's existence and its terms, including the $80,000 payment to the headmaster. Days after the settlement was finalized, however, the headmaster's daughter posted the following on Facebook: "Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT."
Once it learned of the post, the school informed the former headmaster that it would not pay a large portion of the settlement because the headmaster and his daughter had violated the confidentiality clause. The circuit court ordered the school to comply with the terms of the agreement; however, an appellate court reversed the enforcement ruling, finding that the former headmaster was at fault because his daughter did exactly what the agreement was designed to prevent.
Rich with irony, this case serves as a timely reminder that employers may want to review the confidentiality provisions of their settlement and termination agreements to ensure they are providing proper protection and effectively limiting what their employee and his or her family members and others to whom disclosure is made are saying about the terms or amounts of any settlements. Of course, given the recent actions by the EEOC challenging separation agreements, employers must take care to craft appropriately tailored restrictions on dissemination.