The New Jersey Supreme Court ruled late last June, 2015 State v. Saavedra that an employee who takes an employer's confidential documents may be criminally prosecuted and go to jail if found guilty. In that case, a school board employee was alleged to have taken confidential student files along with other documents that contained personal information about other individuals Many of the documents allegedly taken were originals or the only copies contained in the school board files. As we've indicated elsewhere in an interview with the New Jersey Law Journal, this ruling will create a chilling effect on employees who rightly believe that how their being treated by their employer violates anti-discrimination and whistleblower laws.
So what is an employee who is suffering illegal discrimination, illegal retaliation or is being fired, transferred or demoted because of an illegal motive supposed to do? Well, let's start what an employee cannot do. An employee cannot take the following types of documents from the employer's premises: 1) an employer's original documents; 2) an employer's only copy of documents; 3) documents that contain confidential information of other individuals; and 4) documents that an employee was not entitled to see while performing her/his job duties.
So what types of documents can an employee take without risking jail time? Basically, document copies that the employee was entitled to see during the course of his/her employment like their own performance reviews, job offer letters addressed to the employee, employer manuals distributed to employees, emails/memos and/or correspondence that the employee was identified as a recipient or sender together with attachments to the parent email. Documents lying around copiers, in garbage pails or in plain view on other employee's desks should not be taken.
Already, employer side attorneys are openly counseling their employer clients that scare warnings should be sent to employees that if any document is taken, then the employer will automatically notify the authorities to file criminal charges for theft. So be careful when you take and/or keep documents that are employment related. Additionally, if an employee is aware of a document that falls within the four classes of documents described above that should not be taken but that is relevant and will prove illegal conduct by the employer, then 'inventory" or catalog that document with the following information: 1) type of document; 2) date of the document; 3) the subject of the document; the sender and recipient of the document and where you viewed the document. This will enable your attorney to ask for that document during the discovery phase of a lawsuit and if the document disappears, it will create the inference that employer is hiding or destroying relevant documents.
There is a saying in the legal profession: bad facts make bad law and that is true here. But if an employee is careful, they can still lawfully collect evidence that ultimately proves their claim of illegal treatment by their employer.
The attorneys at Green Savits, LLC have extensive experience in federal and state trial and appellate courts representing victims of discrimination. Call (973) 695-7777 or contact our New Jersey employment law firm for an initial evaluation of your case.