Let's say an employee is being sexually harassed by the
boss. The employee has complained to HR, but to no avail, and,
finally, the employee has had enough. The employee quits and goes
to the nearest EEOC office to file a charge of discrimination. But,
the EEOC investigator wants to see evidence. The harassment took
the form of emails and text messages with sexual overtures,
promises of advancement in exchange for sexual favors, and repeated
rebuffs and requests to stop by the employee. The employee also
filed a complaint with the HR Department in writing. And, there
were emails from other employees sympathizing with the employee and
offering to serve as witnesses. But, the employee
doesn't have access to any of this because the employer
required them to return all company property, information and
documents, and promptly shut off access to the email system when
the employee quit.
This situation is all too common and, although litigants are
required by law to preserve all evidence of claims and defenses
when they know that litigation may be imminent, it can be difficult
to prove that an employer has failed to comply with these laws. In
extreme cases, litigants have even intentionally destroyed
evidence. An employee in this situation might well be reluctant to
trust that an employer will preserve the evidence.
The good news is that an employee in this situation need not trust
the employer. Many courts have held that an employee has a
“privilege” to keep copies of documents, which support
discrimination claims. Thus, an employee in this situation would be
on firm ground to keep copies of documents, such as those mentioned
above.
However, employees who think they have claims should be very
careful not to take this too far for two main reasons. First,
Courts have ruled against employees in situations where an employee
either (1) retained a trove or unrelated documents or (2) obtained
the documents through an unauthorized or intrusive search of the
employer's records. Second, Courts have held that the right
to keep copies of documents evidencing claims is limited and have
upheld terminations based on misappropriation of documents even
when some of the documents supported claims. Laws such as the
Uniform Trade Secrets Act prohibit misappropriation of trade
secrets. Employers often can bring other claims against employees
for taking company information, even if it does not constitute a
trade secret. And, many employers require employees to sign
confidentiality agreements, IP agreements, and similar contracts
which could support claims against an employee who takes company
information.
The courts have reconciled these inconsistent interests through a
fact intensive analysis hinging on the following:
- What the Employer's Policy says;
- Did the Employee sign any sort of confidentiality agreement;
- Did the employee simply copy his/her own emails or was the copying more invasive;
- Was the employee saving/copying only that information to assist in a discrimination lawsuit;
- Did the employee return the emails upon being asked by the employer; and
- Did the emails contain personal or proprietary information.
In the hypothetical situation above, the employee is probably on
firm ground. The employee kept copies only of documents evidencing
the harassment; only kept copies of documents to which the employee
was a party or had authorized access; and the information did not
contain personal or proprietary information. Even if the employer
had strict policies on confidentiality and a strong confidentiality
agreement, copying such documents would probably be seen as
privileged preservation of evidence of a harassment claim.
As can be seen, however, this can be a close call in many cases and
the consequences for employers and employees can be severe. If an
employer fails to preserve evidence, a court could find that it
committed unlawful “spoliation” of evidence and
sanction it in a number of ways, often ordering it to pay the
employee's attorneys' fees. In egregious cases, a court
could impose an evidentiary inference that the evidence which was
not preserved would have been favorable to the other side, and, in
very serious cases, a court could enter default judgment against
the non-compliant party. For the employee, exceeding the right to
copy documents evidencing claims could result in termination and
liability for misappropriation of trade secrets and similar claims.
In these situations, employers and employees are well-advised to
consult competent legal counsel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.