On June 23, 2015, the New Jersey Supreme Court held that an employee could be subject to criminal prosecution for taking an employer's confidential documents without authorization to support a discrimination and retaliation lawsuit.

In State v. Saavedra, plaintiff Ivonne Saavedra ("Saavedra"), an employee of the North Bergen Board of Education (the "Board"), filed a civil lawsuit asserting statutory and common law employment-related claims, including discrimination and retaliation under the New Jersey Law Against Discrimination ("NJLAD") and violation of the Conscientious Employee Protection Act ("CEPA").  During discovery, it was uncovered that Saavedra removed and/or copied hundreds of confidential documents for use in her civil case, many of which contained highly sensitive information about students.  The Board subsequently reported the alleged theft of documents to the county prosecutor's office.

A grand jury indicted Saavedra for official misconduct and theft for the unlawful taking of public documents. Saavedra moved to dismiss her indictment, contending, among other things, that her removal of documents for use in her employment lawsuit was authorized by the Court's decision in Quinlan v. Curtiss-Wright Corp. The trial court denied Saavedra's motion to dismiss the indictment, and the Appellate Division affirmed.

The Court's Decision

• The Supreme Court held that the trial court properly denied Saavedra's motion to dismiss the indictment and that the State did not improperly withhold exculpatory information from the grand jury.
• The Court clarified that its earlier Quinlan decision did not authorize employment discrimination plaintiffs to engage in "self-help". The Court explicitly rejected Saavedra's claim that an employee has "a legally recognized right to take confidential employer documents for use in employment discrimination litigation."
• The Court further explained that while its "decision in Quinlan did not endorse 'self-help' as an alternative to the legal process in employment discrimination litigation," an employment discrimination plaintiff (such as Saavedra) can present a "claim of right" defense to a criminal theft charge, if the evidence supports such an assertion.

 

Employer Take Away

While the Saveedra decision unequivocally rejects "self-help" as protected conduct, employers should continue to consult with counsel about the repercussions and actions to be taken against an employee who improperly takes company confidential documents.

• After considering plaintiff's allegations under Aquas, the Appellate Division concluded that plaintiff could not demonstrate that the employer's conduct was negligent or that it ignored its affirmative duty to prevent discrimination.
• The Court noted that the employer had adopted well-defined policies to prevent discrimination in the workplace, trained its employees, and implemented procedures to stop the offending conduct once it became aware of discriminatory behavior.
• Moreover, defendant's managers were proactive by initiating contact with plaintiff before he complained of discrimination, by promptly investigating his complaints, and implementing remedial measures.
• The Court further noted that plaintiff could not point to tangible retaliatory acts by the employer; rather plaintiff generally complained that people were less interactive and more distant with him.

 

Vicarious Liability

• The Court also rejected plaintiff's allegations of vicarious liability for alleged supervisory harassment, because the employer enforced its anti-harassment policy and took no tangible employment action against plaintiff.

 

What Should Employers Do?

NJ employers should work with counsel to ensure they have comprehensive anti-discrimination and anti-harassment policies and training in place, and respond promptly to any complaints of unlawful conduct. QUESTIONS? Contact Katherin Nukk-Freeman or the NFC attorney with whom you normally work for assistance in addressing employee "self-help" conduct or to implement workplace policies or training.