confidentialit y and nondisclosure provisions have b e en es sen t ial comp onen t s of m os t employment-related set tlement agreements. Without those protections, employers are reluctant to set tle. They want assurance that only the parties to the settlement (and their tax and legal advisors) will know the amount paid and the basis for payment to resolve allegations of misconduct. Many agreements, too, include significant remedy clauses for breach of these provisions, which employers
reasonably expect will be a strong deterrent—enforced by the threat of payments being “clawed back”—to discussing the claims publicly via any media forum, especially social media. Employers don’t want others to know beyond doubt that any payment was made, and (if it indeed was) whether it was made to protect the reputation of the business or the individual. And they very much want to prevent disclosure’s primary unintended consequence: more claimants bringing more claims. Now, t hough, set t lement terms of t his nature require new t hink ing — an d i t ’s all du e to re cen t t a x- law changes.
CAN SOCIAL CHANGE BE SPED UP VIA LEGISLATION? A key provision of the recent tax-law overhaul, clearly written with #MeToo in mind, suggests it can. By Ann E. Evanko, Esq., and Katherine L. Wood, Esq.
BUSINESS EDITION | SPRING 2019