A recent New Jersey Supreme Court decision found that an employee could be criminally prosecuted for taking documents from the employer's possession, even if those documents are evidence of the employer's unlawful behavior and even if the employee takes those documents solely for the purposes of using them in an employment discrimination case against the employer.
In November 2009, Ivonne Saavedra brought a New Jersey Law Against Discrimination ("LAD") claim against her employer, the North Bergen Board of Education (the "Board"). During the course of the case, Saavedra's lawyer produced several hundred documents owned by the Board. The Board claimed that those documents were confidential and protected by federal and state privacy laws and reported the alleged theft to the Hudson County Prosecutor. The Prosecutor pursued it presented the case the grand jury, which ultimately indicted Saavedra for official misconduct and theft by unlawful taking of public documents. She moved to dismiss the indictment.
At a hearing before the trial judge, Saavedra's lawyer cited an earlier case to claim that it was legal to take confidential documents to prove discrimination. The lawyer also claimed that preventing Saavedra from taking the confidential documents to use them in her own discrimination claims would have a "chilling effect" on future LAD cases. The Supreme Court disagreed and said that the earlier case "did not endorse self-help as an alternative to the legal process in employment discrimination litigation," nor did it "bar prosecutions arising from an employee's removal of documents from an employer's files for use in a discrimination case; or otherwise address any issue of criminal law."
What does this decision mean for employees? Although New Jersey whistleblower laws are among the most comprehensive in the country, this ruling shows that there is no qualified immunity to protect whistleblowers from criminal prosecution. Thus, an employee should never resort to taking documents, forwarding emails or other methods that could be considered as "theft" and an employee's attorney should be cautious in advising their clients what disclosures will expose them to potential criminal charges.
What does it mean for employers? Since the court considered whether the employer in the case had "a clearly identified company policy on privacy or confidentiality that the employee's disclosure has violated," with such a policy, an employee's use of company information may be justified. So, businesses should consider revising their employee handbooks and company policies to bring to every employee's attention that there are privacy interests at stake and that if he or she violates them, they may face criminal prosecution. With the collaboration of Kieu-Nhi Le, Rutgers School of Law Newark candidate for a JD degree in May 2016. She is the Managing Business Editor of the Rutgers Computer and Technology Law Journal.