When the Supreme Court of New Jersey held in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010) that an employee’s unauthorized taking of an employer’s confidential documents can constitute protected activity when the documents are used in support of a discrimination claim. it left several vexing questions unanswered. In particular, the Court did not explain how it would reconcile this controversial decision with instances where an employee’s taking of documents constituted a violation of law.
On June 23, 2015, the Supreme Court of New Jersey began to provide an answer. In State v. Saavedra, No. A-68-2013, 073793 (N.J. June 23, 2015), the Court held that an employee who takes confidential records from an employer to support discrimination and retaliation claims may face criminal prosecution. It rejected an argument that its decision in Quinlan prohibited the prosecution of alleged whistleblowers. While New Jersey has historically offered great protection to employees through some of the most extensive whistleblower laws in the country, the decision in Saavedra may limit these protections considerably, as employees seeking to remove employer documents for use in a civil suit are now may face criminal liability.
Saavedra, the defendant-employee, filed suit against her employer, the North Bergen Board of Education in November 2009 alleging several claims of retaliation, discrimination and violations of family leave and federal and state wage and hour laws. During the course of litigation, Saavedra removed 367 confidential student files without the Board’s permission, which she intended to use in support of her claims. After these files were subsequently produced by Saavedra’s attorney during discovery, the Board notified the county prosecutor’s office. In April 2012, the grand jury returned a two-count indictment charging Saavedra with official misconduct and theft by unlawful taking.
Saavedra moved to dismiss the indictment arguing that the removal of the documents was permitted under Quinlan. The trial court denied the motion. The Appellate Division affirmed in June 2013.
THE SUPREME COURT’S DECISION
In Quinlan, the Court considered whether an employee’s conduct in taking documents from her employer for use in a discrimination claim – and in using those documents to support that claim – is protected activity for purposes of a retaliation claim. After a jury found in Quinlan’s favor and awarded her over $10 million in compensatory and punitive damages, the Appellate Division reversed and remanded the retaliation verdict. However, the Supreme Court of New Jersey reinstated the trial court’s initial decision in favor of Quinlan. In so doing, the Quinlan Court adopted a totality of the circumstances approach for determining whether an employee’s removal of confidential documents and records constituted protected activity. The court found that the taking of approximately 1,800 pages of documents did not constitute protected activity, although it said the use of those documents during depositions did constitute protected activity.
In rejecting Saavedra’s reliance on Quinlan, the Saavedra Court stated, “nothing in Quinlan states or implies that the anti-discrimination policy of the LAD immunizes from prosecution an employee who takes his or her employer’s documents for use in a discrimination case.” The Court further stated that Quinlan did not “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.” Cautioning employees thinking about engaging in this kind of “self-help,” the court emphasized that they may still be disciplined for the unauthorized removal of company records and that there is no guarantee their conduct will “fall within the protection our test creates.” Simply put, “[T]he risk of self-help is high.”
Moving forward, prospective whistleblowers may be better served by obtaining allegedly relevant confidential documents through pre-trial discovery, as emphasized by the court in Saavedra, than by risking criminal liability by taking them without permission from their employer.