Can an employee whistleblower legally copy, retain and use for whistleblowing purposes confidential documents belonging to his or her employer? Yesterday, this thorny question was answered “yes-under-appropriate-circumstances” by the New Jersey Supreme Court, in Quinlan v. Curtiss-Wright Corporation (A-51-09).
In Quinlan, the Court upheld the trial court’s determination that the employee’s copying and retention of 1,800 documents belonging to the defendant Curtiss-Wright was not “protected conduct” while at the same time leaving undisturbed the jury’s finding that the employee’s termination was retaliatory. In its analysis, the Court created a framework allowing lower courts to find that copying and retention of employer documents is protected conduct.
In dicta, the Court carefully analyzed seven factors — including six previously enunciated in Niswander v. Cincinnati Ins. Co. (529 F.3d 714, 6th Cir. 2008) — that must be considered in determining whether an employee’s copying activities are protected. The “magnificent seven” are highlighted below and discussed in detail at pages 39-43 of the Quinlan opinion.
Whether the employee’s use of the documents is “protected activity” (and therefore “legal” for purposes of a retaliation claim) must be evaluated against the following factors:
1) how the employee came into possession of, or obtained access to, the document;
2) what the employee did with the document;
3) the nature and content of the particular document in order to weigh the strength of the employer’s interest in keeping the document confidential;
4) whether there is a clearly identified company policy on privacy or confidentiality that the employee’s disclosure has violated;
5) the circumstances relating to the disclosure of the document, balancing its relevance against considerations about whether its use or disclosure was unduly disruptive to the employer’s ordinary business;
6) the strength of the employee’s reason for copying the document rather than, for example, simply describing it or identifying its existence to counsel so that it might be requested in discovery; and
7) [specifically in the context of New Jersey LAD cases] consideration of the broad remedial purposes the Legislature has advanced through our laws against discrimination, including the LAD, as well as consideration of the effect, if any, that either protecting the document by precluding its use or permitting it to be used will have on the balance of legitimate rights of both employers and employees.
In broad terms, the Court’s decision in Quinlan is consistent with what may be described as a loose consensus that prospective whistleblowers are generally safe copying and using an employer’s documents if the employee has exhausted available internal remedies for correcting the alleged employer misconduct, acquires the documents in the normal course of his or her responsibilities, and delivers them only to counsel for purposes of evaluating or pursuing litigation or to law enforcement.