This week the New Jersey Supreme Court held that a criminal prosecution against a woman who took documents from her employer to support hers and her son’s employment discrimination case against their employer could proceed. This case should serve as a cautionary tale to all employees who are considering taking documents from their employer’s files to prove that the employer violated their rights.
In this case, the employee who faces criminal prosecution, Ivonne Saavedra, and her son both worked for the North Bergen Board of Education (Board). In 2009, Saavedra and her son filed an employment discrimination lawsuit against the Board in which they alleged that the Board retaliated against them because Saavedra had blown the whistle on illegal activity such as pay irregularities, improper administration of employee vacation and family leave, and unsafe working conditions. During the litigation of this discrimination case, Saavedra’s attorney had to produce documents to the Board’s attorney that Saavedra had taken from the Board. She had taken the documents from the Board because she believed they supported her discrimination case.
When the Board learned that Saavedra had taken the documents it informed the county prosecutor and the county prosecutor obtained an indictment against Saavedra for official misconduct and theft. Saavedra’s attorney tried to convince a court to dismiss the criminal charges against Saavedra. One argument that Saavedra’s attorney raised was that the New Jersey Supreme Court previously held in Quinlan v. Curtiss-Wright Corp. that, in certain circumstances, an employer may not retaliate against an employee because she took documents from the employer in order to support a discrimination claim against the employer. The New Jersey Supreme Court rejected this argument, in part, because the Qunilan case said nothing about whether an employee could be criminally prosecuted for taking documents—it only addressed the issue of whether an employer could retaliate against an employee who took documents from the employer in support of his or her discrimination claim.
While it is unclear whether Maine courts would come out the same way as the New Jersey Supreme Court in a similar case, this case illustrates how perilous it could be for an employee to take documents from his employer to prove that the employer violated his rights. In many employment law cases, documents are key pieces of evidence; the employer has control over those documents; and the employee has justified concerns that the employer will destroy the documents in order to shield itself from liability. However, there are ways to ensure that those documents are not destroyed which do not involve the risky move of taking them from the employer. If you believe your employer has violated your rights and you want to make sure the documents that prove your case are preserved, you should contact an experienced employment attorney as soon as possible to discuss how to best ensure that the documents are preserved in a lawful way.