United States District Court, M.D. Florida, Orlando Division
E. MENDOZA, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on the parties' Renewed Joint
Motion for Approval of Settlement (“Joint Motion,
” Doc. 44). United States Magistrate Judge Gregory J.
Kelly submitted a Report and Recommendation (Doc. 45), in
which he recommends that the Joint Motion be granted in part.
After a de novo review of the record, and noting
that the parties jointly filed a joint Notice of
Non-objection to Report and Recommendations (Doc. 46), the
Report and Recommendation will be adopted in part and
rejected in part.
parties' Settlement Agreement contains a confidentiality
provision that forbids Plaintiff from discussing the
Settlement Agreement with anyone “other than each
Party's attorneys and accountants.” (Doc. 44-1
¶ 9). As Judge Kelly noted, “courts in this
circuit routinely reject FLSA settlement agreements
containing confidentiality provisions.” Pariente v.
CLC Resorts & Devs., Inc., No.
6:14-cv-615-Orl-37TBS, 2014 WL 6389756, at *5 (M.D. Fla. Nov.
14, 2014) (collecting cases). This is because such provisions
are at odds with the purpose behind the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et
seq., and are inherently unenforceable due to the fact
that the underlying settlement agreement is filed on a public
docket. See Id. (noting that confidentiality clauses
“thwart Congress's intent to ensure widespread
compliance with the FLSA”) (quotation omitted);
Housen v. Econosweep & Maint. Servs., Inc., No.
3:12-cv-461-J- 34TEM, 2013 WL 2455958, at *2 (M.D. Fla. June
6, 2013) (acknowledging that confidentiality provisions are
“unenforceable due to the public filing of the
Judge Kelly concluded that because separate consideration was
provided for the confidentiality provision, the provision is
fair and reasonable, and the Settlement Agreement may be
approved with the confidentiality provision. This Court
[A] confidentiality provision furthers resolution of no bona
fide dispute between the parties; rather, compelled silence
unreasonably frustrates implementation of the
“private-public” rights granted by the FLSA and
thwarts Congress's intent to ensure widespread compliance
with the statute. To further Congress's intent, the
Department of Labor requires the employer of an employee
covered by the FLSA to display conspicuously in the workplace
a detailed notice of the employee's FLSA rights. By
including a confidentiality provision, the employer thwarts
the informational objective of the notice requirement by
silencing the employee who has vindicated a disputed FLSA
Dees v. Hydradry, Inc., 706 F.Supp.2d 1227, 1242
(M.D. Fla. 2010) (footnotes omitted). While this Court
acknowledges that confidentiality provisions have been upheld
in this circuit when separate consideration is given,
this Court is of the opinion that such payment “does
not remedy [the] concern about the possible frustration of
the notice requirement to other employees.” Glass
v. Krishna Krupa, LLC, No. 10-mc-00027-CG-B, 2010 WL
4064017, at *2 (S.D. Ala. Oct. 15, 2010). Therefore, the
confidentiality provision will be stricken.
though the Court will strike the confidentiality provision,
this does not preclude approval of the Settlement Agreement.
The Settlement Agreement contains a severability provision,
stating: “If any provision is determined by a court of
competent jurisdiction to be invalid or unenforceable[, ] the
remaining provisions shall continue in full force and effect
notwithstanding.” (Doc. 44-1 ¶ 11). Thus, the
Court can strike the confidentiality provision without
affecting the enforceability of the remainder of the
Settlement Agreement. See Pariente, 2014 WL 6389756,
at *5-6 (invoking settlement agreement's severability
clause to strike confidentiality provision). In all other
respects, the Court agrees with the analysis set forth in the
Report and Recommendation.
it is ORDERED and ADJUDGED
1. To the extent that it is consistent with this Order, the
Report and Recommendation (Doc. 45) is
ADOPTED and CONFIRMED and
made a part of this Order.
2. The parties' Renewed Joint Motion for Approval of
Settlement (Doc. 44) is GRANTED in part.
3. The first sentence in paragraph nineteen of the Settlement
Agreement (Doc. 44-1 ¶ 19), which provides for retention
of jurisdiction, is STRICKEN.
4. The confidentiality provision of the Settlement Agreement
(Doc. 44-1 ¶ 9) is STRICKEN.
5. The parties' Settlement Agreement, as amended by this
Court, is APPROVED; and this case is