June 17, 2014 Articles

Hacking, Wiretapping, and Other Misdeeds as "Protected Activity"

Decisions to discipline or fire employees engaged in such activity should be made only with the assistance of qualified legal counsel.

By Kevin J. O'Connor – June 17, 2014

With the broadening of antidiscrimination laws in the United States and stated intent on the part of state and federal courts to broadly apply such statutes to fight the cancer of discrimination, some employees have felt emboldened in their pursuit of such cases and have violated statutes and common law when attempting to gather evidence for their claims. They have hacked into computers and supervisors’ files and have secretly taped coworkers and supervisors. A recent opinion of the New Jersey Appellate Division addressed the novel issue of whether two employees of a state agency who surreptitiously taped supervisors, and violated a state wiretapping law in the process, could be protected from discipline or termination when they turned the tape over to their attorney for use in the litigation.

Courts throughout the country have sought to strike a balance between the interests of employees in pursuing their claims and that of the employer in maintaining some semblance of order in the workplace. Employees caught accessing confidential files or hacking into computers have argued that they were protected because of the pendency of litigation and the fact that they turned over the incriminating evidence to their lawyer to use in the litigation.See generally Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 717 (6th Cir. 2008); O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996); Watkins v. Ford Motor Co., 2005 U.S. Dist. LEXIS 33140 (S.D. Ohio 2005); Quinlan v. Curtiss-Wright, 204 N.J. 239 (2010).

In Quinlan, the court ruled that Joyce Quinlan, an employee of Curtiss-Wright, engaged in protected conduct under New Jersey’s Law Against Discrimination (LAD), N.J. Stat. Ann. § 10:5-12 et seq., when she copied confidential data in the workplace and provided it to her attorney for use in her ongoing discrimination lawsuit.

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