The importance of this was demonstrated in the case of Colorado, A.T. at State Farm, where the court argued that “because an arbitration minutes are potentially public and the complainants do not keep it confidential, we agree that the complainant`s medical information in the previous arbitration proceeding was not confidential.” In this case, the existence of a confidentiality clause could have protected the disclosure and use of the person`s medical records in a subsequent, inconsistent case. In short, probably not. In the end, one of the likely reasons for these new attacks could be the recent emergence of the #MeToo movement, where it emerged that some bad actors had used arbitration agreements and the confidentiality rules they contained to silence employees while sweeping away a multitude of sexual harassment claims under the proverbial carpet. And while the #MeToo movement has certainly been commendable for this ordeal of bad actors, let`s be careful when it comes to losing the forest to the trees without knowing it, while we are looking for rewarding goals. The NLRB also warned that an employer, while it is legal to maintain this provision in the agreement, “would not have the right to exonerate or discipline a worker for a disclosure of information protected by Section 7, even if the disclosure is contrary to that provision.” (Added highlight.) Instead, an employer would be required to enforce the confidentiality provision by an arbitrator or court. First, confidentiality clauses have always served the interests of both parties by preserving entrenched privacy rights. Among workers, this implies the right to protect their previous accusations from the curious eyes of potential disapproving employers who may think twice (albeit illegal) before hiring a candidate who had sued their former boss. It also includes the right to protect against disclosure of sensitive information that can be obtained through arbitration proceedings, such as an employee`s private medical records.B. The Eleventh Circuit found that a confidentiality provision in a compromise clause was materially unacceptable.
The case concerned an alleged class action by David Johnson, in which it was alleged that the KeyBank National Association (“KeyBank”) had changed the order of debit card transactions to maximize its collection of overdraft fees.