“I have a question about your recent post about New Jersey employees’ rights to copy company documents without being fired for it in retaliation.”

Question: In a recent blogpost you wrote about a New Jersey Supreme Court case that said it may be okay for an employee to copy company documents and bring them up in a court case against the employer. 

I heard that the employee in the case you mentioned was the head of Human Resources, and so she had access to all personnel documents.

Wouldn’t it be unfair to employees who don’t work with a lot of documents if only employees with access to personnel documents could copy them and give them to their lawyers? Isn’t it unfair to employees without access to documents? 

Flemington, New Jersey

Answer: Rick, thanks for writing in. The legal decision you refer to, the New Jersey Supreme Court’s decision in Quinlan vs. Curtiss-Wright Corporation, has many people quite interested. Some are happy. Some are not. I am very happy about the decision.

The Court decision was a good example of courts’ “balancing of interests.” My view is that the New Jersey Supreme Court did a very good job of what we lawyers call “balancing of interests” between employers, on the one hand, and employees, on the other hand. Employers feel that employees should not be taking documents from the company’s files and using them in court. (In this case, the employer fired Ms. Quinlan for doing so.) On the other hand, employees feel that company documents contain the truth of what happened, and the truth should not be covered up. (Ms. Quinlan felt that she should not have been retaliated against for taking the documents to use in court.) The Court said, “Yes and No,” that is, it MAY be all right for an employee to take documents, but then again, it MAY NOT be all right, too; it all depends on several factors the court provided.

The Court provided Seven Factors to look at in deciding who is right. The New Jersey Supreme Court did not want to give employees an open license to rifle through company documents any time and in any way they wanted to. But they didn’t want to stop the truth from coming out in court, either. So, the court provided seven things for lower courts to consider in deciding if the “document taking” in future cases is either all right, or all wrong. They are:

1. How the employee obtained the document (for examples, found it in the copier or broke open a locked filed cabinet with a sledge hammer);
2. What the employee did with the document (for examples, sent it to a newspaper or gave it to his or her attorney for confidential review);
3. The nature and content of the document (for examples, a list of employees who the company wanted to fire because they refused to do illegal things, or a secret formula for a new medicine);
4. The circumstances of the disclosure (for examples, was the document sent to all employees by email, or quietly sent to the CEO asking for an explanation of what seemed illegal);
5. The degree of disruption the disclosure caused (for examples, did the document cause 100 people to quit because their bonuses were lower than others’ bonuses, or did nothing happen as a result of the disclosure);
6. The reason the employee copied the document instead of having his or her attorney request it in a court case (for examples, did the attorney already request the document and the employer claimed it did not exist, or could it have been obtained easily by the employee’s attorney requesting it); and
7. To what degree the decision might affect the conduct of our society’s employee-employer relations.

These are broad principles, not strict rules. None of these factors is “black-and-white,” but each is something to consider. Higher courts, like the New Jersey Supreme Court, often hand down general principles for lower courts to follow when making their day-to-day decisions. That is truly the beauty of our judicial system, in my opinion: it hands down, from one generation to the next, the experience of facing new situations, and the wisdom of determining what is, overall, the fairest way for us to conduct ourselves. It really is, overall, a wonderful and beautiful process.

We all work around lots of documents of all kinds. Your question: “Is the first consideration ‘unfair’ to employees without access to a lot of documents?” I don’t think so, at all. Each of us, from a clerk to a CEO, work with and are around all sorts of documents – reports, bills, checks, receipts, invoices, emails, memos, letters, contracts, you name it – that are relevant to our own particular area of endeavor. The decision suggests that copying documents that are “near” you in your daily work is probably more acceptable than is copying documents you found when rifling through the CEO’s desk in the middle of the night. The decision suggests that the court said, “Look at how reasonable or crazy is the way the documents were obtained.” That seems fair, reasonable and even-handed to me; not unfair to anyone.

As noted above, I see this decision as very good for everyone, because I think it addresses an important issue but does so “from both sides,” with an understanding achieved by “balancing the interests” in a wise way.

Thanks for the follow-up question. From your question and my answer, I hope readers get a somewhat better understanding and appreciation of how our courts work when they work in their most admirable way to help us all live together in a more just society. And, boy, we sure need a lot of that these days in the area of employment relations. 
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Best, Al Sklover

Don’t forget: we offer Model Letters, Memos, Checklists and Form Agreements for almost every workplace issue. Just [click here.]

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

© 2010 Alan L. Sklover, All Rights Reserved.

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