Last updated Aug. 31, 2017.
A successful employment claim, obviously, requires proof that discrimination or retaliation actually occurred. For that reason, many workers who file employment claims against their current or former employers are tempted to print out, copy, or otherwise take records that support their allegations and turn them over to their attorneys. A salesperson alleging age discrimination, for example, might want to remove documents showing that management assigned new leads to younger staff, but not to older.
However, two recent New Jersey court decisions have called into question whether taking documents from your workplace to support your employment claim is not only wise as a practical matter, but even legal.
Taking Documents from the Workplace: Is it Legal?
The New Jersey Supreme Court first addressed the issue in Quinlan v. Curtiss-Wright Corporation, 204 N.J. 239 (2010). The plaintiff in Quinlan was a female HR manager who was suing her employer for discriminatory failure to promote. She began reviewing the HR files within her access for evidence of gender discrimination to support her claim. To that end, she collected 1,800 documents, some containing confidential employee information such as Social Security numbers and salaries, which she turned over to her attorney. Her attorney then turned these documents over to the employer’s attorney as part of the “discovery” information exchange in the lawsuit.
Subsequently, the plaintiff, in her capacity as an HR manager, received a copy of a performance review for the male employee she alleged had been promoted over her. As the review stated the male’s work “needed improvement,” she believed it was relevant to her claim and also turned it over to her attorney. The attorney produced the review during the male employee’s deposition and questioned him about it, to the objection of the employer’s counsel. Shortly thereafter, the employer terminated the plaintiff for theft of company property. Straightaway, the plaintiff amended her claim to include a count for retaliatory termination.
The case went to trial, where the court ruled that the plaintiff’s attorney’s use of the performance review during his deposition was “protected activity” that supported the plaintiff’s retaliation claim under the New Jersey Law Against Discrimination (the “LAD”). However, the same court held that the plaintiff’s copying of the 1,800 documents, the performance review, and the forwarding of these to her attorney was not protected under the LAD.
How does the court decide if you were allowed to take documents?
After an appellate court reversed, the Supreme Court took the case, articulating a seven-part balancing test to determine when the LAD protects an employee in taking and using documents in support of a discrimination claim. Under the Quinlan test, a court must consider and weigh the following factors in total:
1. How the employee came to possess or access the documents. If the employee comes across the documents as part of her normal job duties, this weighs in favor of their use in her lawsuit. If the employee “rummages” or “snoops around the office of supervisors or other employees” to obtain the documents, this weighs against their use.
2. What the employee did with the documents. If an employee immediately forwards the documents to her attorney, it weighs in the employee’s favor. However, if the employee shares the documents with other workers, or even outsiders to the company, it weighs in the employer’s favor.
3. The nature and content of the documents, including whether the employer has an interest in keeping them confidential. If the documents contain sensitive information that the employer needs to remain private (such as proprietary data or employee social security numbers/salaries), the balance tilts in the employer’s favor.
4. Whether the employee’s actions violated a clear company policy on privacy. A clearly articulated and enforced policy against the copying and removal of company documents will work to the employer’s advantage.
5. The relevancy of the documents, as compared to the disruption to the employer’s business caused by their disclosure. The more directly relevant the documents are to the employee’s claim, the stronger the case for disclosure.
6. The strength of the employee’s reason for copying the documents. Here, a court must consider whether it was vital for the employee to take a copy of the documents, or whether the employee could have merely identified them to her attorney, who could then demand them as part of the discovery process.
7. The broad remedial purposes of the LAD, as well as the balance of rights between employers and employees.
Taking all of the above under consideration, the Quinlan court held the plaintiff’s use of the 1,800 copied documents was not protected, since she amassed them through a “systematic review” of all the files in her department. Moreover, the documents contained confidential employee information, and the company had a “reasonably clear” policy against taking them.
On the other hand, the court held the use of the performance review was protected because, among other things, it was directly relevant to her claim of bias and she had an arguable basis for believing the employer would not produce it in discovery.
Beware: Taking Documents from the Workplace May Be a Crime
Based upon Quinlan, then, many attorneys and legal experts thought that an employee’s copying and taking of company documents in support of her employment claim could sometimes qualify as protected activity, given the right combination of circumstances. However, in an alarming development, an appellate decision from December 2013 ruled that an employee who took documents in support of her employment claim could be indicted on criminal charges, regardless of any of the Quinlan factors.
State v. Saavedra, 433 N.J. Super. 501 (Dec. 2013), involved a clerk for a public board of education who took highly confidential documents for use in her employment claims against the board, which included LAD and CEPA claims. The board of education then notified the county prosecutor, who had the clerk brought before a grand jury on charges of official misconduct and theft. The grand jury indicted the clerk on both charges.
The clerk then argued to a trial court that her indictments should be dismissed because her taking of the documents was protected and legal under the Quinlan factors. More specifically, she argued that the prosecutor failed to present her reasons for taking the documents to the grand jury, and that these reasons were exculpatory and negated her guilt.
The trial court, however, refused to dismiss the indictments. The appellate court agreed, stating that the Quinlan test was only applicable to determining whether an employee’s taking of documents supports a civil retaliation claim under the LAD. A criminal claim was an entirely different matter, and a criminal court judge did not need to consider the Quinlan factors in deciding whether to dismiss the clerk’s indictment — only whether or not the prosecutor introduced sufficient evidence before the grand jury to establish a prima facie case that she committed official misconduct and theft under criminal law.
Even beyond this, the court held that presenting evidence to the grand jury that the clerk “took the documents to pursue her civil lawsuit against the Board is not clearly exculpatory,” and thus the prosecutor was not required to explain the clerk’s reasons for taking the documents to the grand jury. This was so, even though the grand jury transcript indicated that a juror asked the prosecutor, point-blank, “I’m just curious. I though I heard someone say that [the clerk] was going to sue the Board.” When the prosecutor confirmed this, the juror continued, “how is that relevant?”, to which the prosecutor responded, “I believe you answered your own question.” The court ruled that the prosecutor’s answer was not deceptive, and that he “correctly refrained from speculating about [the clerk’s] purported reason for taking the document.”
Indeed, the court reasoned that the clerk’s motives supported an affirmative defense — something for a trial jury to consider after an indictment.
The Saavedra case was appealed to the Supreme Court of New Jersey, which affirmed judgment of the appellate court and remanded to trial court. In its decision in June 2015, the Supreme Court wrote:
“We hold that the trial court properly denied defendant’s motion to dismiss her indictment. We conclude that the State presented to the grand jury a prima facie showing with respect to the elements of each offense charged in the indictment and that the State did not withhold from the grand jury exculpatory information or a charge regarding a defense that it was compelled by law to present. We further hold that defendant’s indictment does not violate due process standards or New Jersey public policy by conflicting with this Court’s decision in Quinlan. The Quinlan case, arising from a plaintiff employee’s claim that her employment was terminated after she took documents belonging to her employer and used them in her employment discrimination litigation, concerned the legal standard that governs certain retaliation claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5–1 to –42. Quinlan does not govern the application of the criminal laws at issue in this appeal.”
Seek Help from an Employment Law Attorney
If, as an employee, you find yourself in a similar situation of needing documents to support your discrimination or retaliation claim, we urge you use extreme caution in copying and taking documents from the employer. Consult with any attorney before taking any such step. Our employment law attorneys have decades of experience helping New Jersey and New York employees. Contact us today for a free case review.