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Are Hold Harmless Agreements Between Employees and Employers Enforceable?


We’ve probably all seen exculpatory clauses—those provisions in contracts or agreements that require that parties hold harmless other party from liability. These agreements are commonly used in business contracts, and in connection with various high risk activities. But they’re also sometimes used in the context of employment.

Is a hold harmless contract between an employee and employer valid under Florida law?

Case Addresses Hold Harmless

A recent case addressed this issue. The case involved an employee who signed a hold harmless agreement with his employer, for any injuries that may happen on the job. The employee was injured, and made a worker’s compensation claim, which precluded the employee from making any kind of claim against the employer anyway.

But the employee did try to make a claim against an affiliate of the employer.

That affiliate claimed that suit against it was barred by the employee’s hold harmless agreement the employee signed with the employer. But the appellate court found the language of the waiver to be clearly worded, and thus, effective to protect the employer.

Waivers Aren’t Always Enforceable

However, this should not be seen as blanket permission to obtain waivers from employees, and then disregard worker safety.

In many cases, where there may be violation of government safety standards, government regulations, or OSHA safety standards, it is highly unlikely that a hold harmless between an employer and an employee would be held valid, because of public policy considerations.

Furthermore, remember that if there is any ambiguity, confusion, or vagueness, courts will generally interpret these ambiguities in favor of the employer. This is both because the employer is the party that drafted the agreement, and also because of the unfair bargaining power between the parties.

Also remember that no waiver will avoid any worker’s compensation claim, which is required by Florida law to be given to employees. At best, you would be waiving personal injury lawsuits, which are barred anyway between employer and employee, so long as worker’s compensation is afforded to the employee.

Waivers also may discourage workers from coming to work, or remaining with your company. This is especially true in higher risk professions.

Also remember that if you intend to have employees waive claims related to COVID-19, those clauses will be highly scrutinized by courts, as many governments are contemplating making such claims unenforceable.

Hold Harmless Agreements With Non Employees

Of course hold harmless agreements with non-employees—such as the general public, or your customer base—have their own requirements, but generally are held to be enforceable.

There are conditions. The injury sustained must be related to, or reasonably anticipated to stem from, your business or service. Additionally, your hold harmless must specifically say that the other party is waiving claims for damages that arise from your own negligence.

Call the West Palm Beach business litigation lawyers at Pike & Lustig can help you protect your business, and review your business agreements.



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