EMPLOYEE “SELF-HELP” REMOVAL OF CONFIDENTIAL DOCUMENTS TO SUPPORT A DISCRIMINATION CLAIM

Posted by on Aug 11, 2015 in Uncategorized

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com) and Bryan A. Coe, Summer Associate (bcoe@hillwallack.com)

Employees seeking to support their employment discrimination litigation by removing confidential documents from their place of work should think again. That conduct, commonly referred to as “self-help” was recently dealt a blow in State v. Saavedra. Previously, in Quinlan v. Curtiss–Wright Corp., the New Jersey Supreme Court established a “totality of the circumstances” test for balancing an employee’s right to access and use documents during workplace discrimination litigation against an employer’s interest in protecting confidential documents. The New Jersey Supreme Court recently revisited the issue in State v. Saavedra, in which the court addressed whether an employee could face criminal charges for engaging in self-help to obtain confidential documents during civil litigation.

In State v. Saavedra, the employee removed documents from her employer, the North Bergen Board of Education, to assist in her employment discrimination claim. In response to a request from the employer to produce all confidential documents in her possession, the employee produced the documents which she removed from her employer. Upon learning of this, the employer notified the County Prosecutor, and the employee was indicted for third-degree theft by unlawful taking of public documents.

The employee argued that taking documents was allowed under the Quinlan “totality of the circumstances” test. In deciding the Saavedra case, the New Jersey Supreme Court, in a 6-1 decision, found that “nothing in Quinlan states or implies that the anti-discrimination policy of the Law Against Discrimination immunizes from prosecution an employee who takes his or her employer’s documents in use in a discrimination case.” However, the employee would be able to assert, during her criminal prosecution, that her intent was to use the documents in her discrimination litigation. The Supreme Court then articulated the following five factors for a jury to use when determining if an employee has a “claim of right” to use employer documents: (1) the contents of the documents; (2) the presence or absence of a confidentiality policy; (3) the privacy interest at stake; (4) the extent to which the employee disclosed the documents; and, (5) the employee’s reason for taking the documents instead of seeking them through discovery. This “claim of right” providesa defense to criminal charges, and the jury would weigh these factors to determine whether it was appropriate to remove the documents.

In the wake of the Saavedra decision, employers should make sure employees who handle confidential information sign a confidentiality or non-disclosure agreement. Having this signed agreement will weigh in an employer’s favor if an employee attempts to establish a “claim of right” during a civil proceeding. Additionally, the employee handbook should list how confidential documents should be handled and what the consequences of mishandling those documents are, including potential criminal prosecution.

If you are an employer, who regularly deals with confidential information, you should seek legal advice to determine whether your employment policies accurately protect you from an employee taking those documents from your possession to use in employment litigation.

 

Read More

Medical Marijuana Use or Employer Rights – Which Comes First?

Posted by on Sep 26, 2014 in Uncategorized

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com)

On September 30, 2014, the Colorado Supreme Court is set to hear argument in Coats v. Dish Network, L.L.C., about an employee’s right to use medical marijuana during non-work hours, and the employer’s right to test for the drug and discipline users. At issue is the right of an employee to use medically prescribed marijuana to help with painful spasms when he/she is not at work. Dish Network contends that it should not have to retain employees whose marijuana use violates federal law and whose performance as a result of their marijuana use could be an issue.

Read More

Stakes Run High In The Arbitration Arena As Supreme Court Unanimously Holds That “Convincing A Court Of An Arbitrator’s Error – Even His Grave Error – Is Not Enough"

Posted by on Jul 12, 2013 in Uncategorized

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com and
Deniz S. Uzel, Summer Associate (duzel@hillwallack.com

On June 10, 2013, the United States Supreme Court unanimously affirmed Oxford Health Plans v. Sutter, exhibiting a cautionary warning to employers and the particular terms they may want to include in the arbitration clauses of their employment agreements.

This case involved a situation where parties bargained for broad contractual language, stating specifically that any disputes were to be “submitted to final and binding arbitration.” The contract was silent concerning class arbitration. Sutter brought a class action claim against Oxford Health Plans. The parties agreed that the arbitrator would decide whether this broad contractual language would be inclusive of class arbitrations. The arbitrator ultimately found that since the language included the phrase “all such disputes,” class arbitrations were permitted.

Read More

Stakes Run High In The Arbitration Arena As Supreme Court Unanimously Holds That “Convincing A Court Of An Arbitrator’s Error – Even His Grave Error – Is Not Enough”

Posted by on Jul 12, 2013 in Uncategorized

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com and
Deniz S. Uzel, Summer Associate (duzel@hillwallack.com

On June 10, 2013, the United States Supreme Court unanimously affirmed Oxford Health Plans v. Sutter, exhibiting a cautionary warning to employers and the particular terms they may want to include in the arbitration clauses of their employment agreements.

This case involved a situation where parties bargained for broad contractual language, stating specifically that any disputes were to be “submitted to final and binding arbitration.” The contract was silent concerning class arbitration. Sutter brought a class action claim against Oxford Health Plans. The parties agreed that the arbitrator would decide whether this broad contractual language would be inclusive of class arbitrations. The arbitrator ultimately found that since the language included the phrase “all such disputes,” class arbitrations were permitted.

Read More

Supreme Court Clarifies Causation Standard for Title VII Retaliation Claims

Posted by on Jun 28, 2013 in Uncategorized

By: Felicity S. Hanks, Esq. (fhanks@hillwallack.com / link to bio)

On June 24, 2013, the Supreme Court issued its decision in University of Tex. Southwestern Medical Center v. Nassar through which it confirmed the causation standards to be used in Title VII retaliation cases. The Court held that retaliation claims under Title VII must be proved according to “traditional principals of but-for causation, not the lessened causation test stated in §2000e-2(m). This ruling relieves the confusion for attorneys and litigants and gives employers a reason to let out a sigh of relief.

Read More

Interns Hunt Fox for Compensation

Posted by on Jun 18, 2013 in Uncategorized

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com and
Gina R. Lauterio, Summer Associate (glauterio@hillwallack.com

As long as an internship doesn’t consist of coffee-runs, internships usually provide valuable opportunities for developing skills, experience, and networking for young professionals. Still, there is a debate about whether this value can replace a paycheck — the latest story in this discussion being a Manhattan federal court ruling this week that a business which relies heavily on unpaid interns is obligated to pay them.

Read More