Many potential clients come into our office to pursue their claims of discrimination with stacks of documents to show us that they think support their claims. Some of the documents are merely their own performance evaluations or company policies that they were given to them at the start of their employment. However, sometimes clients bring us copies of emails, company financial information, or other employees’ performance evaluations that they helped themselves too when they still had access to their employers’ documents. This always begs the question, “was their self-help legal?”
Self-help copying of documents is always a risk. Under New Jersey law, an employee who copies documents from his/her employer may be seeking to protect his/her own right not to be discriminated against and thus be engaging in activity protected by law. However, employees may be disciplined by their employers for copying documents and there is often no way to know for sure whether a court would find that their conduct was protected until a after long, drawn out litigation process.
In 2010, the New Jersey Supreme Court outlined factors to consider in determining whether an employee who finds, copies, and discloses an employer’s otherwise confidential documents in the context of prosecuting a discrimination case is engaging in conduct protected by law. Understanding these factors can be very helpful in turning the risky decision to engage in self-help into an educated one.
Factor One: How did the employee come into possession or gain access to the document? Was it accidental or in the course of their job duties? Or did they rummage through files or snoop around offices for documents?
Factor Two: What did the employee do with the document? Did they show it to their attorney or did they share it with the entire company?
Factor Three: How interested is the employer in keeping the document confidential? Does it contain trade secrets or Social Security numbers or confidential medical information?
Factor Four: Is there a company policy on privacy or confidentiality that was violated by taking these documents?
Factor Five: How relevant is the document to the employee’s claim as compared to the disruptiveness caused to the business by taking and using the document?
Factor Six: Why did the employee copy the document instead of simply describing them to their attorney?
Factor Seven: This factor tells courts to examine two important considerations: the “broad remedial purpose” of New Jersey’s laws to end discrimination and the effect that allowing or prohibiting the use of a document would have on the rights of employers and employees.
Basically, if you see a document in the course of your job duties, it is relevant to your case, and it does not contain confidential, personal information (e.g. medical information or Social Security numbers), then you are probably okay to make a copy. Otherwise, put it back in the file or exit the screen you were viewing and get back to work.
While understanding and following these seven factors could help ensure that you are legally taking documents, the risks are still great. For example, the New Jersey Appellate Division recently affirmed the criminal indictment of an employee who took highly confidential documents from her employer to support her discrimination lawsuit. The New Jersey Supreme Court will be hearing this case in the next few weeks and I will update my discussion of the law in this area after their decision is published.