LEARN ABOUT GOVERNMENT PRESS RELEASES FOLLOWING SETTLEMENTS

The Obama Administration followed a policy promoting “public shaming” of employers accused of law violations, as a deterrent to discourage violations.  These policies appear to have decreased but are still continuing under the Trump Administration.  A recent example shows why employers need to be careful in their settlement agreements with government agencies, as to how press releases by the government are handled.

In a recent ruling, Nebraska Beef reached a settlement agreement with the Department of Justice Office of Special Counsel (now called Immigrant Employment Rights).  In reaching the settlement, the company had denied any violation of the immigration laws, and their apparent approach to the settlement was to avoid any admission of liability by the company.  Nevertheless, the Justice Department issued a press release stating that its investigation “found” the company unlawfully demanded immigration documents from job applicants because of their citizenship status.  The meat packer claimed the press release inaccurately characterized the company’s settlement, and thus, that the Justice Department had breached the settlement agreement.

Even though there were never any findings of liability under the Immigration and Nationality Act, and even though the apparent purpose of the settlement was to avoid any admission of liability, the court found there was no breach of the settlement agreement.  U.S. v. Nebraska Beef, Ltd., No. 17-1344 (8^th Cir., 2018). 

The bottom line is if employers wish to settle with a government agency and avoid an adverse press release, they should inquire about the agency’s precise intentions before settling a case and secure some assurances of what is said.  A dissenting judge in the case would have ruled that the agency had an obligation to describe the settlement accurately.