Silencing injured workers: Employers use of Non-Disclosure language in settlements

By MICHAEL C. GOLDBERG
To stop injured workers from disclosing settlement details to coworkers and others, some employers are sneaking non-disclosure language into workers’ compensation settlement paperwork. An inattentive lawyer may not notice this addition, which can put the injured worker at risk.

Never sign a settlement agreement when the employer includes this kind of language in a settlement agreement. Settlements spell out what the employee is entitled to from the employer, including medical care, unpaid bill coverage, or back wage benefits.

TO SILENCE WORKERS
Employers are now seeking to silence injured workers and prevent them from discussing the terms of their settlement—or even what the injury was that sparked the claim—with anyone.

I believe the use of this language isn’t legal or enforceable by the employer. And, I doubt employers care about enforceability anyway, because the terms are meant to scare the worker, which has the intended effect of stopping any discussions once the settlement is finalized.

Unfortunately, this tactic works. Most employees will abide by the terms because they don’t want to get into trouble.

Here’s the rub. All injury records and settlements must be part of the public record. Employers have the right to information about prior cases an injured worker may have brought against any employer, especially if it involves the same body part. If non-disclosure language is insisted upon by an employer, then any information related to a settlement couldn’t be made public.

CATCH 22 FOR WORKERS
But that’s not what the law requires. It becomes a Catch-22.

Workers also have a use for this public data, most notably when permanent and total disability is claimed. Prior injuries and settlements must be provided to the court and can bolster the argument in favor of the employee. If the worker is prohibited from presenting this information due to a non-disclosure wording in a settlement, they could lose their benefits.

I suspect one key reason employers are using this language in settlements is that they don’t want their other employees to know they have legal rights to bring claims.

Imagine the confusion that could be caused when an injured worker receives benefits for the same type of injury another worker is being told isn’t a work injury and won’t be covered!

Also, it’s possible employers simply want to keep their workers in the dark about what they pay claims on. After all, a worker who doesn’t know if an injury is claim-worthy might not file a claim.

BOTTOM LINE: DON’T SIGN
The bottom line is that no one should ever sign off on this kind of language in a settlement.

The easiest way to prevent it is to read the entire agreement and take note of each point the employer makes. Employers may say the only way to finalize the deal is to accept non-disclosure language. Don’t believe them! I’d rather go to trial on this issue and force the employer to resolve the case without this language than see a worker unnecessarily fearful because of unscrupulous employer practices.

(Michael Goldberg is a partner of Dobson, Goldberg, Berns & Rich, LLP, and practices in the areas of workers’ compensation, civil litigation, and labor law. He is also a member of CWA Local 6300. Contact him at 1-800-489-2891 or mcgoldberg1964@gmail.com.)