Worker's Comp - Confidentiality

catherinetnc · January 2005

Went to mediation Thursday with an employee who has been milking the system. (Don't get righteous on me - I know what I am talking about). Anyhow- due to the fact that we have changed carriers the w/c insurer did not have a lot of incentive to retire the guy, so he signed a settlement for his current injury and continues to work for us (until the next injury). Last time he got a settlement, he informed his coworkers he took it to Harrahs . . ..
Because he blabs about his awards, I asked that a confidentiality stipulation be in the settlement agreement. Mediator says, sure, but it is not enforceable. I said, you mean, if he signs something saying he'll keep his award confidential, and then discloses it to his co-workers (morale booster to them) we can't discipline him or fire him? Mediator says "that's right." So, on Friday, the guy tells all of his co-workers how much he got (yes, he signed the settlement agreement indicating he would keep the award confidential.) I call employment lawyer, who says the mediator was wrong and that should have been written in the settlement.
Anyone with experience in this aspect of W/C?
Thanks-
Catherine

Don D · January 2005

The only think I can say is you should have contacted your employment lawyer before, not after mediation.

catherinetnc · January 2005

We had the W/C lawyer there - plus the mediator was a lawyer. They both insisted that the non-disclosure would be unenforceable. And termination issues and workers comp often go hand in hand.

I was just hoping someone would have some experience with non-disclosure of worker's comp awards.

Thanks

Down_the_Middle · January 2005

The burden for you right now is to prove that the breach of the confidentiality clause has caused damages to the organization. That's the whole purpose of such agreements. I'm guessing that there are no remedies for damages cited in the agreement either--------just a confidentiality statement which is good faith language. Free speech is still permitted unless it damages another party. If there's sufficient disruption to the operations (aside from the flash that occurs with something like this), I'd get the employment attorney to file cease and desist papers with the local court. You'll probably not go much farther than that, but the employee will get the message and you'll have learned an important message for future use. If you feel that strongly about having this confidentiality language in the future, have your employment attorney prepare a para or 2 for you to insert into the settlement agreement. It will be more enforceable-------assuming your state W/C laws permit.

catherinetnc · January 2005

Will do. Thanks -
Catherine

catherinetnc · January 2005

Actually, Free Speech is not protected in the work place.

Don D · January 2005

I'm afraid it is, by the National Labor Relations Act. If you go about telling employees what conversations they can and cannot have, you will find a representative of the NLRB on your doorstep.

catherinetnc · January 2005

We are not unionized.
We can tell our employees that we don't want pornography on the walls, that we don't want to hear any political statements, that we don't want any religious symbols on the walls. These are all forms of "protected speech" that we can prohibit at our workplace.

the NRLB would not be involved.

catherinetnc · January 2005

An employee's right to free expression does have boundaries. Under Connecticut law, you can't be held liable for firing or disciplining an employee because of her speech or other expression if it interfered with your ability to operate efficiently and profitably.

This is just one of many examples. I'm in NC. First amendment applies to government intrusion on freedom of speech - not private parties' "intrusion" on same.

And the "freedom to contract" allows parties to agree what can and can't be said as long as there is consideration for the promises made. Theoretically we could contract with employee that if he said the word "elvis" we could fire him as long as we had given him something (consideration) to sign the contract.

catherinetnc · January 2005

I just read Section 7 and some cases limiting its interpretation. Although that rule appears to apply to non-union shops, I stand behind the freedom of the employee and employer to contract to limit employees speech on a given subject. Also, the Act seems to protect speech that defames employer - I don't know that amounts of w/c awards is in the purview of that rule.

Don D · January 2005

Be sure you know that the NLRB has oversight and enforcement authority at businesses without regard to whether or not that business' employees are organized formally into a union. One valid example would be if you decided to prohibit your employees from discussing their pay with each other, as many employers actually think they can do. That is a direct violation of the NLRA as employees in any work setting have the lawful right to assemble and discuss working conditions, one of which is their pay. To that extent, employees' right to speak openly at will is protected by law. Freedom of Speech, rigidly applied, deals with only government limitation on restricting it.

LindaE · January 2005

I'm in NC, too, and got a real education on this during a recent HR class. Our company prohibits its employees from discussing hourly pay rates and salaries. It happens all the time and causes the expected problems. I looked up North Carolina labor laws and found a clause stating that we may not prohibit this. Oops! After completing that class, it seems that the only speech-related issues we may prohibit/discourage are profanity (happens) and gossip (happens a lot!). The most important thing that particular class taught me was negligent retention. Looking back as we have in similar situations, you'll probably be able to see the warning signs of a problematic employee. Big headache, good learning opportunity.

Worker's Comp - Confidentiality

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