Monday, January 6, 2014

Criminalizing "Opposition" Conduct?

New ImageThe New Jersey Appellate Division just handed down a troubling opinion that, if not corrected or at least clarified on appeal, has the potential to provide employers with massively greater leverage in dealings with their employees. What is even more remarkable is that State v. Saavedra was decided in a state that is generally pretty permissive with respect to the actions employees can take in pursuing claims under its antidiscrimination and antiretaliation laws.

As the caption suggests, Saavedra is a criminal prosecution, with the defendant having been indicted for “official misconduct” and theft. Her  sin was taking a number of documents from her employer, the North Bergen Board of Education, for possible use in her civil suit for discrimination and for retaliation in violation of the New Jersey Conscientious Employee Protection Act.  In a nutshell, defendant  took hundreds of documents from the Board; her attorney in her civil case against the Board used some of them during the discovery phase of the suit. When her attorney then turned over the documents to Board attorney in the civil suit,  that attorney notified the Board's general counsel “who brought the matter to the attention of the Hudson County Prosecutor, who determined that the matter should be presented to a grand jury.” Indictment followed.

Some of the documents contained sensitive information about students, parents, and Board financial dealings (including a parent’s bank statement and a list of students to be seen by a school psychologist). The opinion suggested that the Board could suffer legal liability from the disclosure of such information.  But, unlike, say, Erik Snowden, Ms. Saavedra apparently did not publish the documents and appeared not to share them with anyone but her attorney.

The Appellate Division upheld the indictment, and I confess to lacking the expertise to analyze the criminal aspects of this case, although I remain skeptical that any employee who removes documents from a workplace is guilty of theft and, if it is a public workplace, guilty of criminal “official misconduct.”  I  note that the plaintiff had a pretty low level position, but “official” for purposes of the statute seems  to mean only that the defendant is a public employee. The court also had no difficulty with finding that an intent to use the documents to further her civil litigation satisfies the “personal benefit” element of the offense.  These conclusions mean that most, if not all, New Jersey public employees face the risk of criminal charges for similar conduct

It is possible that I’m being too harsh, however.   First, the Board apparently had a policy in place and employees were trained regarding appropriate use of such documents, so, contrary to the defense attorney’s claim, this wasn’t exactly like someone taking work home.  Second, some documents appear to have been originals, and the court refers  to evidence that defendant had purposes other than using the documents in support of her civil suit, including  “disrupt[ing] the psychiatric treatment of students with special needs,” and  exposing the Board to liability. How persuasive that evidence might be is another question, but the possibility may take Saavedra out of the garden variety claims of employees “purloining” employer documents.

What’s  surprising about the case is that New Jersey has been especially protective of employees who engage in self-help to document claims under its Law Against Discrimination or its Conscientious Employee Protection Act. While the federal courts would likely hold that firing an employee for stealing documents is not actionable retaliation under, say the antidiscrimination laws, e.g., g., Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253 (4th Cir. 1998) (taking documents from supervisor’s desk not protected under Title VII); cf Niswander v. Cincinnati Insurance Co., 529 F.3d 714 (6th Cir. 2008) (balancing employee and employer interests), New Jersey engages in a much more nuanced analysis. 

 As I’ve blogged before on Workplace Prof,  in Quinlan v. Curtiss Wright. the New Jersey Supreme Court there dealt with an employee who copied 1800 pages of documents and provided them to counsel before he filed suit.  When the employer learned of the conduct, it fired her for theft, and when she filed a retaliation claim, it argued that her misconduct justified the discharge.The New Jersey Supreme Court split the difference,  essentially rejecting the company’s argument that such conduct necessarily justified discharge but in the process producing a  multi-factor test for determining whether such conduct is protected, including:

  • whether the employee came upon the documents "innocently" 
  • whether the employee went beyond sharing them with her attorney to evaluate her claim
  • the nature of the documents, including the strength of the employer's interest in confidentiality
  • whether the disclosure was  disruptive
  • the strength of the employee's  reason for copying the document (as opposed, for example, to identifying it for a later document request during discovery).

Saavedra, then, had to confront the significance of Quinlan for a criminal proceeding implicating similar employee “theft,”  and it found  that decision largely irrelevant.  It rejected any need for the trial court to apply a Quinlan analysis in deciding whether to dismiss the indictment (although the trial court had covered its bases by suggesting that such an analysis wouldn’t help defendant).

Accordingly, the Appellate Division rejected defendant's argument that “Quinlan essentially prevents the State from introducing evidence before the grand jury that demonstrates a prima facie showing that defendant ‘unlawfully t[ook], or exercise[d] unlawful control over’ the documents. Quinlan did not establish a bright-line rule that automatically entitled defendant to take the Board's highly confidential original documents.”  Saavedra cited language from Quinlan stressing the risks of self-help for an employee since a subsequent court may not find her conduct protected.

 The one ray of hope for defendant was the possibility that Quinlan may  come in by the backdoor later in the proceedings.  Defendant had made an “honest error” argument, which the court said “amounts essentially to a claim of right defense.” Under New Jersey law, a defendant may defeat a charge of theft by asserting a defense that she acted “under an honest claim of right to the property ... that [s]he had a right to acquire or dispose of it as [s]he did.”  Presumably Quinlan is the basis for an honest claim of right – regardless of whether she actually satisfied the multi-factor analysis.  Such a defense, however, operates at trial, not to justify dismissing an indictment, so defendant has to face a criminal trial to assert this defense. 

The prospect of prosecution alone, even if an “honest error” defense is available or conviction is otherwise unlikely, would strike many as enough to chill potential LAD and CEPA plaintiffs.  But the Saavedra court showed little patience with this argument. “Defendant implies that prosecuting her for theft and official misconduct is against LAD's public policy of rooting out discrimination in the workplace. This implication amounts to a request that we hold it is against public policy to criminally prosecute employees for taking employer public documents.” So framed, the argument was rejected.

That argument, however, resonated with dissenting Judge Simonelli, who would have dismissed “in the interests of justice” largely because

[i]t is fundamentally unfair to criminally prosecute and imprison an individual for theft, and official misconduct, for taking or copying confidential employer documents while engaged in protected activity pursuant to the Conscientious Employee Protection Act  and the New Jersey Law Against Discrimination. The law gives no fair warning the conduct is illegal.

 (citations omitted). As the last sentence suggests, the dissent relied on Quinlan to undercut whatever fair warning the New Jersey criminal statute might otherwise have provided of the impermissibly of defendant’s conduct.

It’s easy to dismiss Saavedra as a sport case brought by an overzealous county prosecutor.  And, of course, the “official misconduct” charge is limited to public sector employees. But the theft charge is applicable to any employee, and the possibility that a vindictive employer would try to persuade a prosecutor to indict an employee who took company documents would certainly chill such conduct. While there is only a trickle of instances to date, Saavedra is only one of several criminal prosecutions of employees for taking documents to prove discrimination or public policy claims.

Plaintiffs’ counsel in New Jersey may well have to reconsider normal advice to clients to “gather evidence”!  And what about the client who arrives at your office with a briefcase full of documents, proud of the information she has amassed?  Is the best advice now to tell her not to bring suit – no matter how valid the claim – because of the risk of criminal charges? Of course, the risk that a prosecutor will indict is probably very small, but Saavedra renders it more than a logical possibility.

I also remain confused about exactly what constitutes theft of the documents. The court seemed worried more about the potential use of the information reflected in the documents, not merely about the taking of the physical objects (although its reference to defendant taking originals might suggest an intent to sabotage the operations of the Board, but that would seem to be relevant to the official misconduct charge, not the theft “of moveable property” that was charged).

Suppose the defendant, rather than taking originals or using Board paper to make copies, downloaded a PDF copy or took images with her smartphone? And what about electronic “copies” of electronic communications or files, including emails (say, for example, forwarded from one’s work email address to her personal account or copied into a Word document)?  What about taking verbatim notes on the content of the paper or electronic documents?  What about simply sharing the content (orally) with one’s attorney? The state’s statutes   define theft to include  “trade secrets,”   N.J. Stat. Ann. § 2C:20-1 (g), but the charged offense was theft of “moveable property,” a strange concept in this situation

The point is that if the crime – that is, the theft -- is the taking of the content, not the paper, and sharing it with one’s attorney when contemplating suit, then this case has truly staggering implications, well beyond the particular facts or even LAD and CEPA.   On that, at least, it seems there must be substantially greater clarification.  Or am I reading too much into this? 


Thanks to Kathleen Boozang and Tim Glynn for helping me think through some of the implications of the case.

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