Employee Theft of Employer Documents—Protected Conduct in Opposition to Discrimination or Criminal Activity?

business-doctor-ipad_72DPI_RGBWhat happens to board of education employees who steal board documents to support a lawsuit against their employer?  In New Jersey, at least, they are criminally prosecuted.  In State V. Saavedra, Docket No. A-1449-12T4 (Dec. 24, 2013)(link), the New Jersey Appellate Division upheld the indictment of a North Bergen Board of Education [“Board”] employee who had stolen original Board documents containing confidential parent financial and student medical information.  In so doing, the Court concluded that the anti-retaliation protections afforded to employees in civil matters do not categorically insulate from criminal prosecution a public employee who steals employer documents.

In Saavedra, the employee – who had worked as a clerk for the Board — claimed that she took the documents to support the employment discrimination and whistleblower lawsuit she had brought against the Board under New Jersey civil law.  When, however, the Board learned of this theft during the course of conducting discovery in the civil lawsuit, it referred the matter to the county prosecutor who thereafter secured the indictment of the employee for theft.  The employee was also indicted for official misconduct under a New Jersey statute that prohibits public servants from the utilizing their offices in an unauthorized manner for personal gain.

In appealing the trial court’s refusal to dismiss the criminal charges, the employee argued that her theft of the documents was not unlawful because New Jersey’s Law Against Discrimination, or “NJLAD,” protects employees who acquire employer documents in their efforts to “oppose” discriminatory practices.  Although the Appellate Division in Saavedra acknowledged New Jersey precedent suggesting that an employee who removed or copied employer documents for use in a discrimination case might, in certain circumstances, be protected civilly from retaliatory employment actions (See Quinlan v. Curtiss-Wright, 204 N.J. 239 (2010) ), it nonetheless confirmed that an employee may be prosecuted criminally for those very acts.

Why should this matter to employers here in Connecticut?  Well, for starters, the phenomenon of employee document theft arising from the efforts of litigants and potential litigants to gather evidence is certainly not limited to New Jersey.  Employees nationwide are increasingly accessing and removing employer documents in efforts to either support, or often create, a lawsuit.  Indeed, if an employee shows up at her attorney’s office for an initial consultation without a briefcase full of her employer’s documents, she is often immediately instructed as to the difficulty of proving discrimination claims in the absence of documentary evidence and warned of the complexities of obtaining such documentation in discovery.  Confronted with this admonishment, many employees choose self-help, and simply attempt to obtain employer documents on their own.  Remote computer access programs and the ability to download or transfer files electronically has made it easier than ever for employees to obtain employer materials.

While the issue of whether such acts of “self-help” enjoy civil protection under Connecticut law remains an open issue, it would not be surprising were Connecticut courts to join New Jersey courts (and courts in other states) in holding that such activities were protected.  Indeed, the NJLAD and Connecticut’s Fair Employment Practices Act, or “CFEPA,” not only share the same policy aims but also very similar anti-retaliation language protecting those who “oppose” discriminatory conduct.  In addition, many federal circuit courts have interpreted federal anti-discrimination legislation such as Title VII of the Civil Rights Act of 1964 as potentially protecting such activities.  Since Connecticut courts routinely apply federal case law when interpreting the analogous provisions of CFEPA, it certainly seems possible that at least under certain circumstances, CFEPA will eventually be interpreted as protecting employees who take employer documents in the context of purportedly opposing discrimination.

Even should Connecticut courts ultimately choose to follow this course, Connecticut employers should take heart from the fact that as in Saavedra, they may have an instrument in the form of criminal prosecution to combat employee document theft, even if such conduct is ultimately determined to constitute protected conduct in a civil proceeding.  Of course, employers, should already have in place policies identifying the confidential nature of certain documents and prohibiting the personal or unauthorized use of such property.  This is particularly important in public schools and in any other educational institution that receives federal funds, where educational records are subject to federal confidentiality requirements.