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Whistleblowers Who Take Company Documents May Risk Criminal Prosecution

Publisher: Forbes
Author: Jonathan Sack

Federal law now protects whistleblowers in many instances from retaliation and encourages them, through financial incentives, to bring qui tam lawsuits and report possible wrongdoing to the SEC and IRS. In this fashion, the law turns company employees into potential confidential informants.

As informants, employees have a powerful incentive to provide federal authorities secretly with business-related information (including documents) that a company would ordinarily consider confidential and strictly for internal use. The regime of whistleblower law expects and even promotes such conduct – though at least one recent state case demonstrates that taking an employer’s confidential information, when it is done for private purposes, still violates the law.

For a New Jersey whistleblower, who took highly confidential educational records that primarily supported a private cause of action rather than evidenced misconduct by the organization, the consequences of going too far have been severe. A former employee of the North Bergen Board of Education, Yvonne Saavedra, set out to prosecute employment discrimination claims (alleging gender, ethnic and sex discrimination) and whistleblower retaliation claims (alleging that the Board terminated her son because Saavedra complained about pay irregularities, violations of child study team regulation, unsafe conditions and other workplace problems). Instead, she now faces criminal charges of official misconduct and theft by unlawful taking of public documents. On June 23, 2015, the New Jersey Supreme Court upheld the trial court’s denial of a motion to dismiss the charges – a stark reminder that employees who engage in “self-help” discovery by taking company documents may risk criminal prosecution.

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