With the advent of technology in the modern workplace, an enormous amount of data is created and has the potential to end up in the hands of an employee who is pursuing an employment-based claim against his or her employer. The proliferation of such data increases the risk that such an employee will gain access to sensitive data, either legally or illegally, and turn it over to counsel for use in the litigation. Another possibility is that the employee will disseminate the data to similarly situated employees to assist in their pursuit of similar claims. Is such an employee protected from termination or some other adverse employment action on the ground that he or she has engaged in protected activity?
In some instances, employees may set out to “create” evidence by, for example, surreptitiously recording managers or co-employees to preserve statements that can be used to support ongoing litigation against the employer, or by hacking into an email account to find incriminating evidence. The question that is often raised in such circumstances is whether the employee’s act of furnishing this information to his or her attorney is, itself, protected activity, and if so, whether an employer who disciplines the employee in such circumstances may be found liable for retaliation.