In the wake of the Harvey Weinstein scandal, a bill sponsored by a New York State senator (Brad Hoylman) and New York State Assembly member (Nily Rozic) after the Roger Ailes scandal is receiving renewed attention. To recap, Weinstein has been accused by dozens of women of lewd behavior—and even rape—over a period of decades, which accusations led to his termination from The Weinstein Company and resignation from its board of directors. Many of Weinstein's accusers reached settlements that included nondisclosure agreements. Hoylman and Rozic's proposed New York bill would make null and void any provision in confidential settlement agreements that had the effect of concealing claims of harassment, as well as other labor violations, like discrimination, retaliation and nonpayment of wages, i.e., nondisclosure agreements. The purpose behind the bill is to prevent alleged harassers from silencing their accusers. California passed a law last year prohibiting confidentiality clauses in civil settlements designed to cover acts that would be considered felony sexual offenses, which is a higher threshold than many cases of harassment.

To date, no such bills have been sponsored in Florida. In Florida, confidentiality and nondisclosure provisions are typically found in both pre- and post-suit settlement agreements in the employment context, e.g., discrimination claims, sexual harassment claims and Whistleblower claims, and they are enforceable as long as they do not violate public policy. In one widely discussed case from 2013, Patrick Snay, the headmaster of Gulliver Preparatory School settled an age discrimination suit against Gulliver, with the school agreeing to pay Snay $80,000 contingent on his agreement to maintain confidentiality. Snay agreed to the terms, which limited him to discussing the matter with his attorneys, professional advisers and wife, but he shared the settlement with his 18-year-old daughter who posted about how her parents had “won” the case against Gulliver on Facebook stating that the school was “now officially paying for my vacation to Europe this summer.” The post was available to the daughter's 1,200 Facebook friends, many of whom were associated with the school. After becoming aware of the post, Gulliver refused to pay Snay claiming he violated the nondisclosure agreement. The Third District Court of Appeal agreed with Gulliver finding that Snay had breached the terms of the confidentiality agreement and therefore he could not compel payment of the settlement amount.

As can be seen from the Snay case, a Florida court will enforce a confidentiality agreement or provision when the information sought to be protected is actually confidential. In Florida, protectable information includes both trade secrets and confidential business or professional information. There is a presumption of irreparable injury if the confidential information is disclosed. “Confidential business or professional information” is a much broader term than “trade secrets” and is information that is not publicly available and may include personnel matters. To be enforceable, the confidentiality agreement must meet the basic requirements of contract law, i.e., it must be in writing and signed by the employee against whom enforcement is sought.

While the Weinstein scandal has started a conversation as to what changes can be made to prevent systemic abuses of power, in Florida, the standard confidentiality provisions in these types of sexual harassment settlements have not yet been subject to challenge.

Stephanie Mazzola is an associate with Tripp Scott in Fort Lauderdale. She focuses her practice on complex commercial litigation, labor and employment, construction and appellate law.