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Employees Who are Being Retaliated Against or Discriminated Against by Their Employers Must Be Cautious in Preserving Records for Litigation

racism-2733840__340-300x300When an employee is being harassed or disciplined in his employment as a result of discrimination or retaliation for the employee’s objections to illegal conduct, there are multiple laws which may provide relief to the employee.  These include, for instance, New Jersey’s Law Against Discrimination (the “LAD”) and New Jersey’s Conscientious Employee Protection Act (“CEPA,” also known as the “Whistleblower Law.”)


Both Acts may allow the employee to bring a lawsuit against the employer for a wrongful termination or other adverse employment action (i.e. demotion), as well as harassment.  When an employer is wrongfully disciplining or retaliating against an employee, it is important for the employee to preserve and maintain records of the wrongful conduct of the employer in order to support her claim that she suffered a wrongful employment action.  However, employees need to be cautious in what records they preserve and how they preserve those records.


In the case of Quinlan v. Curtiss Wright Corporation  Joyce Quinlan believed that as a result of gender discrimination, her employer had passed her over for a promotion. She then began copying confidential human resources files which she believed supported her claim that she was being discriminated against and she produced the copies in the course of discovery during litigation.  The employer later fired her for “taking” the records (while litigation was ongoing).  Quinlan then amended her complaint to include the claim that she was retaliated against for essentially participating in the LAD suit against the employer.  The Law Against Discrimination  not only prohibits employment discrimination on the basis of a protected classification (gender, nationality, religion, race, etc.), but it also prohibits retaliation against a person for opposing discrimination, filing a discrimination complaint, or participating in a LAD proceeding.


In Quinlan, the New Jersey Supreme Court reviewed whether or not the employee was protected from disciplinary action against her for copying and using confidential employer records in her lawsuit, and found that she was protected.


The Court determined that it had to balance the competing interests of employers and employees, acknowledging employers’ interests in maintaining confidential records, operating their business, and ensuring the loyalty of their employees, as well as employees’ interests in protecting themselves from discrimination, and maintaining the right to speak out against improper conduct.


In balancing these interests, and deciding whether an employee is privileged to take or use documents belonging to the employer, the Quinlan court established approximately 7 factors to be considered:


  1. How the employee came into possession of (or access to) the documents? If the employee came upon the records in the regular course of her duties for the employer, this factor will generally favor the employee.


  1. What did the employee do with the records? If the employee reviewed the document, copied it, and shared it with an attorney for the purposes of investigation and/or a lawsuit, this would favor the employee.


  1. Is the document privileged or confidential, and what is the confidential nature of the document? For instance, if the document contains trade secrets, proprietary business information, or medical information of other people, then this would favor the employer.


  1. Is there a clearly identified company policy regarding confidentiality that the employer has violated? If so, this may favor the employer.  However, the Court will also consider whether the employer actually, routinely enforces that policy.


  1. Was the relevance of the document worth the disruption to the employer’s business operations caused by the use, copying, and/or removal of the document? If so, this would favor the employee.


  1. What was the employee’s reason for copying the document? If there is a reasonable belief or evidence that if the employee had not copied the document it would have been destroyed or otherwise not maintained by the employer then this favors the employee.


  1. Most importantly, the court should consider how the remedial purposes of the employment law supports the employee rights against adverse employment actions, and how the court’s decision will affect the rights of both employer and employee.


The Court in Quinlan emphasized the overarching, remedial purposes of the LAD and the importance of the Court ensuring that the purposes and goals of the LAD are achieved.  Therefore, the course must use a flexible “totality of the circumstances” approach with the underlying consideration that the court must achieve the goals embodied in the LAD.


Moreover, employees need to be particularly mindful of their specific obligations regarding confidential information and documentation which may exist for specific industries and positions. For instance, the New Jersey Supreme Court has found that a public employee could be charged with criminal violations such as theft when original student records were taken by the employee which were not accessed by the employee in the normal course of her business.


Therefore, while preserving evidence is certainly important for an employee to support his claim, it can also be risky and thus should be limited to meet the above requirements. McLaughlin & Nardi, LLC’s attorneys are experienced in representing New Jersey employees in whistleblower, retaliation and discrimination claims, and all aspects of their employment relationship, from hiring to firing, litigation, mediation and arbitration. To learn more about what we can do to help, please visit our website or contact one of our lawyers at (973) 890-0004.


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