Shhh! You’ve got yourself a deal: Confidentiality and Settlements
“The Grievor and Union agree that the terms of these minutes of Settlement will be kept strictly confidential and shall not be disclosed to anyone.”
If you’ve had experience with a personal injury claim or other civil claim, you are likely familiar with confidentiality language. Above is an example of the legal jargon you can run into when working with lawyers.
Sometimes people gloss over statements like that and don’t pay much attention to their meaning or purpose. It’s very important to remember, however, that confidentiality language is a critical part of any arbitration settlement agreement. In short, these provisions grant protection to the parties involved and their reputations.
In the labour movement, confidentiality provisions are an essential part of the arbitration process.
Almost all matters settled through the mediation-arbitration process will include some terms of confidentiality. This includes, but is not limited to:
- unjust termination (read: What is Just Cause protection),
- unpaid benefits, or;
- a violation of human rights.
Confidentiality provisions have been in the spotlight following the decision in Globe and Mail v. CEP Local 87-M (2013). That case involved journalist Jan Wong, a 21- year employee of the Globe and Mail. Wong had suffered from depression following the publication of a contentious article. After publication, Wong took time away from work but the Globe refused to pay her sick leave benefits. The Globe denied Wong’s disability and eventually terminated her employment.
In response to Wong’s termination, her union filed a grievance and won sick leave benefits and a lump sum payment of over $200,000. As part of the settlement agreement, Wong agreed to terms of confidentiality coupled with a claw-back provision. That provision required repayment of the $200,000 lump sum should Wong divulge the terms of the settlement.
In 2010, Wong published a book titled “Out of the Blue.” In the book, she disclosed the existence of a settlement with the Globe. Wong made no mention of the amount paid by the Globe but hinted a number of times that she received a large settlement. Despite not stating a specific amount, the Arbitrator in her case ordered repayment of Wong’s settlement award. Two subsequent applications for judicial review upheld that decision as well.
Confidentiality provisions are more than just filler in a settlement agreement.
Although it’s not likely that the average employee would disclose the terms of their settlement in a widely published book, this case reveals that confidentiality provisions will be enforced strictly. Whether someone discusses meticulous details or discloses simply that they received a settlement, both forms of disclosure may be considered worthy of penalty.
In arbitration settlements, confidentiality agreements may specify a penalty or may leave the penalty up to the Arbitrator. A Union member who is asked to sign a settlement agreement should be wary of disclosing pertinent information to anyone other than the people specified in the agreement. For example, a member will often be able to disclose information to their immediate family.
A settlement may allow a Union member to tell some information to certain individuals. But, that Union member is still responsible for any disclosures those individuals make.
If a family member shares information, a settlement agreement will likely treat it as though the Grievor violated the terms and would require the Grievor to pay a penalty. Consequently, a Grievor must be sure to restrict any conversation on the matter to the language specified in the Agreement. Generally speaking, such language will be limited to a statement that ‘the matter has been settled.’
In closing, members who are party to a settlement should review – and make sure they understand – any confidentiality provisions in their agreement and adhere to those terms.
If you have any questions or concerns at the time your settlement is presented or after the fact, please make sure you speak to your Union Representative before you disclose any information.