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New Jersey Supreme Court: Taking Employers’ Documents Is Theft

Published by on August 5, 2015

The New Jersey Supreme Court recently affirmed that employees who take or copy their employer’s documents can be prosecuted for theft by unlawful taking. In State v. Saavedra, — A.3d –, 2015 WL 3843764 (N.J. 2015), the court acknowledged that employers’ confidentiality agreements would be rendered meaningless if it provided blanket immunity to employees who […]

The New Jersey Supreme Court recently affirmed that employees who take or copy their employer’s documents can be prosecuted for theft by unlawful taking. In State v. Saavedra, — A.3d –, 2015 WL 3843764 (N.J. 2015), the court acknowledged that employers’ confidentiality agreements would be rendered meaningless if it provided blanket immunity to employees who claim that the documents are necessary to pursue employment discrimination claims.

The court clarified an earlier decision, stating that it “did not endorse self-help as an alternative to the legal process”—through discovery, subpoena and in camera review—in employment discrimination litigation.

The Saavedra case involved a school board member who took originals and photocopies of confidential student records from her employer, whom she later sued under the New Jersey Law Against Discrimination (LAD). During the course of litigation, Saavedra produced the documents in a discovery exchange and the school board referred their claims of theft and official misconduct to prosecutors.

In affirming the charge, the New Jersey Supreme Court rejected the argument that such a charge would have a “chilling effect” on whistleblowers. The court held that “nothing in [our precedent] states or implies that the anti-discrimination policy of the LAD immunizes from prosecution an employee who takes his or her employer’s documents for use in a discrimination case.”

The Court did, however, hold that Saavedra was entitled to raise the defense of “claim of right” justification in her criminal proceedings, and suggests that the evidence that Saavedra took original documents was key to her charge of theft.

 

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