The N.J. Supreme Court has ruled that an employee who copied confidential company documents for use in her discrimination lawsuit engaged in legally protected activity for which she was unlawfully discharged in violation of the state Law Against Discrimination (LAD). In so doing, the high court reversed the appeals court, which sided with the employee’s former employer (who had discharged her for theft of the documents), and reinstated the multimillion-dollar jury award entered at trial.

 

The decision in Quinlan v. Curtiss-Wright Corporation, which lays out a seven-factor test regarding the taking and use of such documents, will compel any New Jersey employer confronted with an employee who has misappropriated documents for the stated purpose of evaluating or prosecuting a discrimination claim to make a complex and nuanced analysis before disciplining her/him. Because any such analysis will depend, to some extent, on whether the employer has a clearly enforced policy against such employee action, employers should ensure that they have such a policy, and that it is well publicized and actively enforced.

 

The plaintiff in Quinlan was a human resources executive who claimed to have been bypassed for promotion due to gender-based discrimination. In support of her claim, she copied and turned over to her attorneys almost 2,000 pages of company documents, many of which contained confidential and personal information about other employees. She was fired after her attorney utilized one of the documents in the prosecution of her claims. Her former employer contended that she was terminated for the unauthorized taking of confidential and privileged information in violation of its clear policy against such actions. The plaintiff claimed that her discharge was an illegal response to her legitimate prosecution of her LAD claims.

 

The Supreme Court acknowledged that both sides had important interests at stake. Employers must be able to protect certain information from broad dissemination and to count on employee loyalty. Workers, on the other hand, must have the law’s protection to pursue discrimination claims without retribution. To balance those interests, the court announced a seven-factor test for determining whether an employee’s unauthorized taking and use of company documents constitutes improper action for which he/she may be disciplined or discharged, or protected conduct in furtherance of the LAD’s express and laudable goal of eradicating the “cancer” of employment discrimination. Ultimately, given the cumbersome nature of the test, many will conclude that the court’s solution favors employee interests.

 

Following are the seven factors to be considered:

 

1. How the employee came to possess the document. When an employee accesses a document through the ordinary course of his/her employment, this factor will weigh in the employee’s favor. When an employee obtains a document through intentional actions outside of his/her normal duties, this factor will favor the employer.

2. What the employee did with the document. If the employee merely provided copies to his/her attorney for evaluation or prosecution of a claim, this factor will weigh in favor of the employee. If the employee shared the document with others, this will weigh against the employee.

3. The nature and content of the particular document. When a document contains privileged information, trade secrets, or personal or confidential information about other employees or customers, this factor will weigh against the employee.

4. Whether a clear and enforced company policy or a common law duty of loyalty was violated. If so, this factor will weigh against the employee.

5. Whether the employee’s use or disclosure of the document was unduly disruptive to the employer’s business. If so, this factor will weigh against the employee.

6. The employee’s stated reason for copying the document rather than describing it or identifying it so that it may be gained later in discovery. If, for example, there is a likelihood that the document would be destroyed or otherwise unavailable through discovery, and/or is central to the employee’s case, this factor will weigh in the employee’s favor.

7. Finally, and “of the utmost importance,” the decision in any particular case must take into account the “broad remedial purposes of the LAD” as well as the tension between employer/employee rights in the workplace.

 

Ballard Spahr’s labor and employment attorneys have extensive experience assisting both public and private employers with discrimination and retaliation claims. If you have any questions about the Quinlan decision or the LAD, please fee free to contact Denise M. Keyser at 856.761.3442 or keyserd@ballardspahr.com, Christopher T. Cognato at 215.864.8612 or cognatoc@ballardspahr.com, or any member of Ballard Spahr’s Labor and Employment Group.


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