Question: I recently heard that in New Jersey it is now all right for an employee to copy company documents to use to prove discrimination, without fear of being fired for it. Is this true? Is it unfair to employees without access to documents?
Princeton, New Jersey
Answer: Dennis, what you’ve heard is true, and is part of a trend toward protecting employees, but only time will tell how other courts will come to see – and either add to or chip away at – this important victory.
The case you are referring to is the decision of New Jersey’s highest court a few weeks ago in a case named “Quinlan vs. Curtiss-Wright Corporation.” In that case, Ms. Quinlan, an employee of the Curtiss-Wright Corporation, sued her employer for discrimination under New Jersey state law after she was passed over for promotion. To support her case, she copied and gave to her attorney over 1,800 company documents containing confidential information about other employees. When the company found out about this during the lawsuit, it fired her for alleged theft of company property.
When Ms. Quinlan was fired, her attorney added another claim against her employer for illegal retaliation. The New Jersey Supreme Court decided that taking documents from an employer for this purpose may be a “legally protected activity,” and if it is, then being fired for it is illegal retaliation. The New Jersey Supreme Court laid out seven factors for courts to look at when deciding whether or not taking documents is a “protected” activity, or not. Because of this seven-factor analysis, it is possible that in some cases copying documents will be found “protected,” and in some cases it will not be.
I don’t see this as unfair to any employers, but generally good for all employees. This is especially good news for Ms. Quinlan: the jury in her case awarded her $10 million for what was done to her, and this decision makes it look highly likely she’ll be able to collect that amount.
More and more, courts and juries are expressing revulsion for employers’ retaliation against employees who stand up for themselves, and rightly so. Standing up for yourself is a courageous act, and one that makes other people that much braver to do the same for themselves. If people were not afraid to stand up to illegal, improper and immoral behavior by employers, we will all be better off.
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Best, Al Sklover
© 2010 Alan L. Sklover, All Rights Reserved.