Can You Be Fired For Giving Confidential Company Documents to Your Employment Lawyer?

As an employment lawyer, I am often asked whether an employee can take copies of documents from their job to help prove discrimination or retaliation. There is no simple answer to that question. Rather, as the New Jersey Supreme Court recognized last week in Quinlan v. Curtiss-Wright Corporation, the answer involves balancing the employee’s right to be free from discrimination and the employer’s obligation to protect confidential information.

In Quinlan, the New Jersey Supreme Court established 7 factors courts must consider when deciding whether an employee can sue for retaliation if he is fired for giving copies of confidential company documents to his employment lawyer. Those factors are:

1. How did the employee get the document? Documents obtained in the ordinary course of an employee’s job are more likely to be protected than documents obtained by rummaging through files or snooping in someone else’s office.

2. What did the employee do with the document? Documents used to evaluate or prove discrimination are more likely to be protected.

3. What is the content of the document? Documents that are privileged or reveal a trade secret or other confidential information are less likely to be protected.

4. Did the employee violate a clear company privacy or confidentiality policy, and does the company consistently enforce those policies?

5. How important is the document is to the employee’s discrimination case, compared to how disruptive the disclosure of the document is to the company’s business?

6. Why did the employee copy the document, rather than just ask the company for a copy of it during the lawsuit? For example, how likely is it that the company would have lost or destroyed the document if the employee had not kept a copy?

7. What will be the impact of the decision on (1) the Law Against Discrimination’s goal to eliminate employment discrimination, and (2) the employer’s right to protect confidential information?

In some situations, making a copy of a key documents can be extremely helpful to prove a discrimination case. In other situations, employees can be fired or even sued for taking copies of confidential documents from their jobs, or it could have a negative impact on their potential legal claims such as cutting off their economic damages.  As a result, it can be extremely important to talk to an experienced employment lawyer before you decide whether you should take copies of documents to help prove your discrimination or retaliation case.