Singh v. Petersendean Roofing and Solar Systems, Inc.

Filing 25

ORDER granting in part 22 Joint Motion for Approval of FLSA Settlement; Adopting Report and Recommendations - re 23 Report and Recommendations. This case is DISMISSED with prejudice. The Clerk is directed to close this case. Signed by Judge Carlos E. Mendoza on 7/2/2018. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

FOUZIA SINGH,
Plaintiff,
v.

Case No: 6:17-cv-1110-Orl-41DCI

PETERSENDEAN ROOFING AND
SOLAR SYSTEMS, INC.,
Defendant.
/
ORDER
THIS CAUSE is before the Court on the Joint Motion for Approval of FLSA Settlement
(Doc. 22). United States Magistrate Judge Daniel C. Irick issued a Report and Recommendation
(Doc. 23), in which he recommends that the motion be granted. After a de novo review of the
record, and noting that the parties filed a Joint Notice of No Objection to Report and
Recommendation (Doc. 24), the Report and Recommendation will be adopted in part.
The parties’ Settlement Agreement contains a confidentiality provision that forbids
Plaintiff from discussing the Settlement Agreement with anyone other than “Plaintiff’s spouse,
attorneys, accountants and/or professional tax advisers.” (Doc. 22-1 ¶ 7a). “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.,
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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 agreements”).
Nevertheless, Judge Irick concluded that because separate consideration was provided for
the confidentiality provision, it did not render the FLSA settlement unfair or unenforceable.
Although Judge Irick declined to address whether the confidentiality provision was enforceable,
he recommended that the settlement of Plaintiff’s FLSA claims be approved. This Court disagrees.
[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 right.
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, 1 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). Further, unlike the general release and non-disparagement provisions, the confidentiality
provision cannot be separated from the settlement of Plaintiff’s FLSA claims. Therefore, the
confidentiality provision will be stricken.
Even though the Court will strike the confidentiality provision, this does not preclude
approval of the Settlement Agreement. The Settlement Agreement contains a severability

1

See, e.g., Valentine v. Physicians Grp. Servs., P.A., No. 3:16-cv-414-J-32PDB, 2017 WL
4174790, at *6 (M.D. Fla. Aug. 23, 2017), report and recommendation adopted, 2017 WL
4155451 (M.D. Fla. Sept. 19, 2017); Smith v. Aramark Corp., No. 6:14-cv-409-Orl-22KRS, 2014
WL 5690488, at *3–4 (M.D. Fla. Nov. 4, 2014).
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provision. (Doc. 22-1 ¶ 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.
Therefore, it is ORDERED and ADJUDGED as follows:
1. To the extent that it is consistent with this Order, the Report and Recommendation
(Doc. 23) is ADOPTED and CONFIRMED and made a part of this Order.
2. The Joint Motion for Approval of FLSA Settlement (Doc. 22) is GRANTED in
part.
a. The confidentiality provision of the Settlement Agreement (Doc. 22-1 ¶ 7)
is STRICKEN.
b. The parties’ Settlement Agreement, as amended by this Court, is
APPROVED.
3. This case is DISMISSED with prejudice.
4. The Clerk is directed to close this case.
DONE and ORDERED in Orlando, Florida on July 2,, 2018.

Copies furnished to:
Counsel of Record

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