SETTLEMENTS, SOCIAL MEDIA & PUBLIC SHAMING: WHAT TO DO?
In a recent human rights dispute, an employee and employer reached a settlement that was confidential and meant to protect both their public reputations.
But then the employee posted on LinkedIn information regarding the settlement that damaged the employer’s public image.?
In L.C.C. v. M.M., 2023 HRTO 1138, the adjudicator from the Human Rights Tribunal of Ontario was asked to decide how to resolve this issue.
In this case, the employee’s sexual harassment case was settled in mediation. The Minutes of Settlement included the following terms:
“Confidentiality:?The employee may disclose the terms of these Minutes of Settlement to their immediate family, legal and financial advisors, on the condition that she also agrees to maintain strict confidentiality of these Minutes of Settlement. Upon inquiry by any person about the resolution of the Application or conclusion of the employee’s employment with the employer, the employee shall simply state that all matters have been resolved. The employee will make no mention of, or allude in any way whatsoever to, the receipt of money or the amount of money received from the employer in this settlement.?
Mutual Non-Disparagement:?The parties agree that the purpose of this settlement is to resolve any issues the employee has with the employer on a confidential basis and without any disparagement of the parties. Accordingly, the parties agree to refrain from making any oral, written or electronic communications about each other that are untrue, defamatory, disparaging, or derogatory, or acting in any manner that would be likely to damage the opposite party’s reputation in the eyes of customers, regulators, the general public, or employees, unless required by law. This non-disparagement includes but is not limited to any electronic communications through social media (such as Facebook, Twitter, Instagram, Youtube, Snapchat, etc.).
Breach:?The employee agrees that if she breaches any of the obligations under this settlement, and in particular the confidentiality obligation set out in paragraph 7 and the non-disparagement obligation in paragraph 8, above, she will be required to repay to the employer the settlement payment paid to her under paragraph 2 of these Minutes of Settlement as liquidated damages, and will be responsible for any additional damages incurred by the employer.
Understanding:?The employee hereby declares that she has had an opportunity to obtain independent legal advice regarding the matters addressed in these Minutes of Settlement or has freely chosen not to do so, and that she fully understands her obligations under these Minutes of Settlement. She voluntarily accepts the terms and conditions set out in these Minutes of Settlement and agrees to finally settle all claims or potential claims, as described above, that she has or may have in future against the employer.”
After the Minutes of Settlement were signed and the employee received her settlement monies, the employee?posted on LinkedIn about the resolution of the complaint, which the employer claims violated the confidentiality and non-disparagement terms of settlement.?
The employee posted the following on LinkedIn:
“To all those inquiring, I have come to a resolution in my Human Rights Complaint against [the name of the employer] and [the name of the other party] for sex discrimination.”
This post was live for?15 months before the employer discovered it.?
When the employer demanded that the employee remove the post,?the employee changed it to:
“To all those inquiring, all matters have been resolved in my Human Rights Complaint against [the name of the employer] and [the name of the other party] for sex discrimination.”?
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The employer applied for a remedy to the?Human Rights Tribunal of Ontario.?
The adjudicator ruled as follows:?
“I find that the language of the two impugned LinkedIn posts and the behaviour of the employee to this Application, do not fit within the spirit of the exception to confidentiality carved out of the confidentiality clause.?
I find that the LinkedIn posts constituted a breach of the non-disparagement clause because it would be objectively reasonable to foresee the possibility of damage to the other parties’ reputation in the eyes of customers, regulators, the general public, or employees by the publicization on social media of such prejudicial allegations.
I am of the view that the employee had a duty to perform the Minutes of Settlement in good faith, with due regard for the employer’s interests and not to undermine those interests, including the employer’s legitimate interests in minimizing reputational damage, maintaining confidentiality and achieving finality in settlement.”
As for the remedy, the adjudicator ruled:
“I find that the employer’s losses include reputational harm.?
The clause is clear that the consequence of such a breach would be the repayment of the settlement payment defined in the Minutes of Settlement as liquidated damages, and that the employee would be responsible for any additional damages incurred by the corporation.?
As these damages are in a liquidated damages provision in a freely entered into contract agreed upon and executed by fully represented parties, they are damages consistent with the intentions of the parties and not punitive. The purpose of such provisions in contracts is to provide certainty and save the parties from having to prove damages, not to impose a punishment or a penalty.”
The take-away is that any party to a dispute that settles may want to consider similar clauses in the Minutes of Settlement as used by this employer to ensure that they do not suffer any reputational damage should one of the two parties make a public post that could be considered injurious to a party’s public reputation.?
This article was recently published in LAW360 at: https://www.law360.ca/ca/pulse/articles/2278870/-settlements-social-media-and-public-shaming-what-to-do-
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto.?He is a Certified?Specialist?in Family Law and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator, Arbitrator and Parenting Coordinator. As a?Divorce Mediator, Steve uses his 30 years of in-depth knowledge of family law,?court-room experience?and expert problem-solving skills in Divorce Mediation to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.?You can find his CV at https://benmor.com/wp-content/uploads/2023/12/Steve_CV_Nov23.pdf.?He can be reached at [email protected]
As a senior attorney, I help high-net-worth families achieve thoughtful divorce solutions with compassion and civility through litigation and mediation.
1 个月Interesting case that illustrates how careful people should be about what they post on social media.