On June 23, 2015, the New Jersey Supreme Court decided that an employee could be charged with criminal theft and official misconduct for stealing her employer’s documents.
In State v. Saavedra, the New Jersey Supreme Court held that its prior decision in Quinlan v. Curtiss-Wright Corp. – that an employee’s conduct in taking and using employer documents in a discrimination claim against the employer may be protected activity in a retaliation case – did not immunize employees from criminal prosecution for such conduct. In fact, the court determined that there is no bar to prosecuting an employee for the removal of documents from an employer’s files, even if the employee removed the documents for use in a discrimination case against her employer.
Nevertheless, the court explained that the employee may assert a “claim of right” defense or other justification to the criminal charges if the evidence shows she intended to use the documents in support of her employment claim.
The basic import of Saavedra is that employees take a risk when removing employer documents, even for use in an employment discrimination case. Although Quinlan prohibits an employer from retaliating against an employee for taking documents to support her discrimination lawsuit, it does not give employees immunity from criminal charges for doing so, even though the facts might give rise to a defense to the charges. The court expressed its displeasure with employees taking employer documents and suggested that employees are better off using the discovery process to obtain them, rather than stealing them and facing criminal charges.
Employers should take this opportunity to examine their confidentiality/non-disclosure agreements and their handbooks to ensure that employees are on notice of the privacy interests at stake and the potential consequences of violating those policies, which could include criminal prosecution. Please feel free to contact Connell Foley’s employment law attorneys for guidance on drafting and enforcing these policies in light of the Saavedra decision.