Tuesday, January 30, 2018

Is employee copying of documents protected activity or unlawful stealing?


It’s a situation that plays out all too often. An employee emails a slew of documents to a personal email address, or drags them into a personal Dropbox, or copies them to a stick drive.

Your first instinct is to assume that the employee is engaged in something nefarious, fire the employee, and even sue for misappropriation of trade secrets/confidential information.

But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit?

Does an employee have a right to copy your documents to prepare a discrimination lawsuit?

Not surprisingly, the answer depends.

In examining the issue, courts balance an employer’s legitimate and substantial interest in keeping its personnel records and agency documents confidential against the employee’s alleged need for surreptitious copying and dissemination of the documents.

In balancing these two competing interests, courts generally apply the following six factors to determine whether the surreptitious copying qualifies as legitimate protected activity or illegal misappropriation.  
  1. How did the employee obtain the documents? 
    • Was it accidental or in the course of their job duties? 
    • Or did they rummage through files or snoop around offices for documents?

  2. To whom did the employee produce the documents?
    • To their attorney?
    • Or to coworkers? 

  3. How strong is the employer’s interest in keeping the documents confidential?
    • Do they contain trade secrets, or other confidential information, or PII such as social security numbers or medical information?
    • Or do they contain non-confidential information?

  4. How did the employer discover the misappropriation?
    • Did the employee volunteer the information as part of the lawsuit?
    • Or did the employer discover it on its own?

  5. Did the employee violate a company policy by taking the documents? 
    • What do the employer’s privacy and confidentiality policies say?

  6. Does the employee have an ability to preserve the evidence in a manner other than copying hte documents? 
    • Can the employee merely describe the content of the documents to his or her attorney?

So, the question then becomes, if you catch the employee red-handed with purloined documents, what should you do? Often, it’s fire now/ask question later. And court generally support this plan of attack.

For example, in O’Day v. McDonnell Douglas Helicopter Co., the 9th Circuit held that an employee actions in rifling through his boss’s desk the evening after being denied a promotion was not protected, even though he claims to have been looking for evidence of age discrimination.
In balancing an employer’s interest in maintaining a “harmonious and efficient” workplace with the protections of the anti-discrimination laws, we are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer’s discriminatory practices; it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.

The 6th Circuit reached a similar conclusion in Niswander v. Cincinnati Ins. Co.

This is not to say that every instance of an employee copying confidential or other company documents to preserve potential evidence of discrimination is not protected. But it does mean that employees climb a steep hill in making this claim, especially when there are less self-help-y avenues to achieve the same goals (retaining counsel, who send a preservation letter to the employer).

So what should you do if you catch an employee copying documents? First, call your employment lawyer. Then, based on O’Day, Niswander, and other cases, rest comfortably that courts generally disfavor self-help, and, unless there is something inherently protected in the act of copying itself (only documents relating to alleged discrimination are copied, documents are emailed by the employee directly to counsel, are they snooping or sending documents they already have), then you are probably (but not certainly) protected in terminating the thieving employee.

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