High-quality cases involving the use of confidentiality clauses (also known as “confidentiality agreements”) in the silence of victims of unlawful harassment or discrimination in the workplace have led the government to verify their use in transaction agreements. The proposals provide that confidentiality agreements cannot prevent individuals from reporting crimes, harassment or discrimination to the police. Transaction agreements appear to be a useful and effective way to conclude a working relationship. Nick Chronias, partner at DAC Beachcroft LLP, discusses with Nick Chronias how to negotiate a successful transaction agreement, from the first conversation with an employee to termination. Agreements are more popular than ever: 83% of employers have signed one or more employers in the past 12 months, with the median being 3, according to a survey of 471 employers conducted by XpertHR. A transaction contract is a legally binding document that provides the employee with a financial tally in return for a waiver of any clearly expressed claim. It should include a detailed breakdown of the payments offered and generally present the references provided, confidentiality and a “no-disappearance clause.” One of the legal requirements is that the contract is concluded in writing and that the worker sought independent legal advice prior to signing. Given that the long-term survival of many companies is on hold, employers will have difficult choices to make, including layoffs. In order to ensure that the process is proceeding as smoothly as possible, it is therefore advisable to provide legal advice to ensure that the correct process is followed and to reduce the risk of claims being filed against the employer and to consider reviewing transaction agreements in order to provide everyone with the best possible outcome of an impossible situation. A Dairy Queen franchisee was recently held in contempt of a federal court for violating a settlement agreement in a sexual harassment case involving a young worker. See EEOC v. YS-J Enterprises, Inc.
d/b/a Dairy Queen, Civil Action No. 1:11 CV 01103, (M.D. N.C. 2013). A federal judge ordered the employer to immediately comply with the terms of the transaction and be fined $1,000 per day until it did so completely. The terms of comparison involved the employer`s obligation to pay $17,500 to the young employee, to redistribute its sexual harassment policy to superiors, and to provide anti-discrimination training.