Upholding a criminal indictment of theft and official misconduct against a former Board of Education clerk, a New Jersey appeals court has warned potential whistleblowers that individuals pursuing anti-discrimination actions against employers must act within the law.

In State of New Jersey v. Saavedra, 2013 N.J. Super LEXIS 185, (December 24, 2013), a Board of Education employee brought a civil action against the Board for violation of the New Jersey law against discrimination. After pre-trial discovery in that case revealed that she possessed more than 300 confidential Board documents, she was charged with theft and official misconduct.

The court rejected the employee’s arguments that her indictment should be dismissed because she took the documents for a lawful use, namely, to support her discrimination claims against the Board.  It also rejected her reliance on Quinlan, a civil case that establishes factors to consider when determining whether an employee’s termination for taking confidential documents is lawful, the court explained that Quinlan did not establish a bright line rule entitling employees to take confidential documents in the context of prosecuting a discrimination case.

The court also rejected the employee’s argument that allowing the state to criminalize her conduct would have a chilling effect on potential plaintiffs of discrimination claims.  Focusing on the facts of the case, the court noted the defendant did not argue that she took only “smoking gun” documents to support her claims, or that it was likely that such documents would be destroyed if she did not take them.  Accordingly, the court concluded the defendant’s actions were not lawful or necessary in light of the many alternative means of obtaining the stolen documents, e.g., through discovery, protective orders, or other measures.

The lone dissenting judge argued that the indictment should be dismissed on fundamental fairness grounds. The majority rejected that argument, concluding that dismissing the indictment “would amount to the judiciary establishing a public policy that employees must be categorically insulated from criminal prosecution under the theft and official misconduct statutes if they take confidential employer documents to support” discrimination or whistleblower claims.

Although the defendant in this case was a public employee, the court’s ruling has broad implications for private employees as well, firmly circumscribing an employee’s right to legally take an employer’s confidential information, even in the context of a discrimination or conscientious objector action.