My lawsuit settlement is hampering my job search

Date: Tuesday, November 15, 2011
Author: Daniel A. Lublin
Publication: The Globe & Mail

The question:  Two and a half years ago, I filed a complaint to my employer which ultimately led to my dismissal. I sought legal counsel, filed a lawsuit and the employer and I settled out of court some months later. However, I had to sign a confidentiality agreement. The termination and legal proceedings wreaked havoc on me emotionally, physically and mentally. After more than a year of therapy for depression, I have emerged with confidence and I’m eager to return to work.
My question is, how do I explain my termination, the issue of a job reference, and the two-year time frame I have been unemployed? I am not at liberty to divulge any details due to the confidentiality agreement and, compounding things further, I was with my last employer for more than 10 years, so a job reference by a direct supervisor is impossible.
The answer: You need to find a smart way to explain your two-year absence from the workplace but your confidentiality agreement should not limit your possible explanations.
First, you may be misinterpreting the scope of the confidentiality agreement that you signed. Most confidentiality agreements that are signed as part of a settlement in workplace litigation specifically prohibit you from discussing the financial terms of your settlement, as employers fear that one settlement could be a precedent for another one. Some confidentiality agreements also prohibit you from discussing the fact of your settlement, which is a broader restriction. However, I doubt that the agreement you signed would prevent you from discussing some of the more basic details of your employment history, including where you worked, what job you performed and your responsibilities in that role. Further, even if the confidentiality agreement was all-encompassing, I still doubt that your former employer has any interest in preventing you from finding other work and, therefore, I doubt they would take any action against you for disclosing some of the details of your employment, provided it is in the pursuit of other work.
Unfortunately, it is equally possible that your lawyer did a bad job getting the important “bells and whistles” into your settlement. In dismissal lawsuits, you must obtain a letter of reference or at least a confirmation of employment letter, an agreement in respect of who at the company will provide oral references and what they will say if asked and, not least, an agreement on how you can characterize your own departure. Had these terms been negotiated into your settlement, you probably would be cashing pay cheques by now.