Commentary & Opinion
By Jon Hyman
Jan. 30, 2018
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.
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
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