Can a settlement agreement which contains a confidentiality clause between a public entity and an individual be kept from the public and remain confidential. This is a question for the New Jersey Supreme Court. Most settlement agreements negotiated between the employment lawyer for the employee and the employment lawyer for the employer contain a confidentiality clause. This clause typically forbids either party to reveal the terms of the agreement for claims brought under New Jersey's employment laws as alleged in the employee's complaint. Between a private company and an employee, a third party will rarely have the ability to see the terms of the settlement agreement. But the issue of confidentiality becomes more complicated when one the parties to the employment lawsuit is a public entity. The issue before the New Jersey Supreme Court is whether the exclusion to the Open Public Records Act for information generated in connection with any sexual harassment complaint that is filed with a public employer, N.J.S.A. 47:1A-1.1, applies to a public entity's agreement with an employee to settle her sexual harassment lawsuit?
The request for a copy of the settlement of the sexual harassment lawsuit in this case was made by the Asbury Park Press. The trial court ruled that the public was not entitled to see the terms of the settlement agreement. The Appellate Division reversed. Now the Supreme Court has decided to make the final call on this issue. We can expect that the case will be watched closely and that the National Employment Lawyers Association (NELA), New Jersey Chapter, will probably seek to chime in on the issue with an amicus brief.
Confidentiality agreements in discrimination lawsuits can be beneficial to both parties to an employment related lawsuit. Employers do not want other employees to gain knowledge of any settlement for fear of future lawsuits. Employees engaged in employment lawsuits also benefit because an employer may be willing to put a price on keeping a matter confidential.
This will be an interesting case to follow for New Jersey employment lawyers on both sides.
