Employees Taking Employer’s Confidential Documents May Be Criminally Prosecuted

On December 24, 2013, the New Jersey Appellate Division issued its decision in the State of New Jersey v. Saavedra case. The Appellate Division upheld criminal charges against the Defendant who took hundreds of highly confidential original and copied documents, after being terminated from her employment as a school board clerk. Defendant claimed that she took those document for the purpose of supporting discrimination, whistleblowing, and other claims against her employer in her lawsuit.

In her complaint, the Defendant alleged that she was a victim of gender, ethnic, and sex discrimination. The complaint also alleged that the Plaintiff terminated Defendant’s son, who was working in the same school, son because Defendant spoke out about issues in the workplace regarding, pay irregularities, improper reimbursement for unused vacations, wrongful denial of unpaid family leave, violations of study team regulations and overall unsafe working conditions.

In this case, the Defendant claimed that he conduct constituted protected activity. Defendant used Quinlan v. Curtiss-Wright Corp., to argue that her actions were not criminally sanctionable because according to Defendant, this case establishes an absolute right for employees with employment discrimination lawsuits to take potentially incriminating documents from their employers. However, the Appellate Division Court disagreed with that reading of the case and stated that the Quinlan seven-part totality-of-the-circumstances test (the “Quinlan analysis“), to determine whether a private employer can terminate its employee for the unauthorized taking of its documents, should not be applied to the facts of the present case. The Court argued that “a criminal court judge is not required to perform a Quinlan analysis to decide a motion to dismiss an indictment charging a defendant with official misconduct predicated on an employment-related theft of public documents. Instead, the judge should apply well-settled standards regarding whether to grant such motions.” As a consequence, the State was required to introduce sufficient evidence before the grand jury to establish a prima facie case that defendant has committed a crime. This case shed light on the differences between protections available to an employee in a civil case and in a criminal case. Indeed, an employee who voluntarily takes confidential or non-confidential documents from his employer to use in a whistleblower or discrimination case may be protected in a civil case, but that same employee is not protected from being criminally prosecuted for stealing those documents from his employer.

Although, this decision is meant to be applied specifically in New Jersey, it may be helpful to employers in any State. Indeed, this decision may lead employers and business owners across the country to review their confidentiality requirements and have more incentive to identify confidential information and establish policies and procedures for its handling and protection. It is also very important for employers to train their employees and managers on confidentiality issues and how to manage sensitive confidential documents.

If you are an employee and you believe you have been discriminated against and/or retaliated against for exposing your employer’s wrongdoings, please contact the Harman Firm, LLP.