Parties often include in separation agreements a confidentiality provision, along with a provision indicating that the agreement is not to be included in the soon-to be former employee’s personnel file. Sometimes, such provisions may end up being meaningless gestures, in light of the fact that such agreements may be susceptible to subpoenas and discovery requests by third parties. And for public employees, such agreements are simply unenforceable because they are clearly subject to disclosure under the Freedom of Information Act. Nevertheless, even with the FOIA mandates, it may be still important for a public employer to comply with such confidentiality provisions in a separation agreement as demonstrated by Werkhoven v. Eastford Board of Education CV-12-6005190 (Conn. Supp. Ct. Jan. 31, 2013).
In Werkhoven, an employee and his public employer entered into a separation agreement by which the parties agreed, among other things, that the separation agreement would remain separate from the personnel file, and provided that the agreement would not be disclosed except where otherwise provided by law. A divorce attorney for the now-former employee’s wife served a subpoena upon the employer, seeking production of the former employer’s entire personnel file. The employer forwarded the personnel file, which unfortunately still included the separation agreement. The former employee brought suit, alleging that the production of the separation agreement constituted a breach of contract and actionable invasion of privacy. The court denied the employer’s motion to strike these claims, thus allowing the lawsuit to survive.
Thus, even though separation agreements involving former employees are clearly public records, and even though a broader subpoena could have led to the disclosure of the agreement in Werkhoven even if it had not been placed in the personnel file, it is possible that an employee may still bring a lawsuit if the agreement is then in fact placed in the personnel file contrary to the agreement’s terms. Whether the lawsuit survives past the summary judgment stage remains to be seen. But the lesson here is that the terms of a settlement agreement – even when such terms that may be unenforceable – must be complied with or the employer could face a lawsuit, regardless of the merits of the claim.