New Jersey Supreme Court Rules that Employee Can be Charged with Criminal Offense of Stealing Documents Even If Purpose is For Use in Discrimination Lawsuit

By Ralph R. Smith, 3rd, Esq.

In 2010, the New Jersey Supreme Court in the case of Quinlan v. Curtiss-Wright held that, under certain circumstances, an employer could not fire an employee for stealing confidential documents from the company if the reason for the theft was to use those documents to support an employee’s lawsuit claiming discrimination under the New Jersey Law Against Discrimination (“LAD”).  The basis for this ruling was that doing so could be considered wrongful retaliation for the employee’s pursuit of a possible LAD discrimination lawsuit.  One issue, however, left unresolved as a result of the Quinlan decision was whether an employee could separately face the possibility of criminal prosecution due to the wrongful theft of company confidential materials.  This past June, an answer to that question was finally provided by a divided New Jersey Supreme Court.

By virtue of a 6-1 decision in the case of State v. Saavedra, an employee can indeed be criminally prosecuted for theft of confidential employer documents, and the LAD does not shield the employee’s wrongful conduct from possible criminal prosecution.  The Defendant in Saavedra worked as a clerk for the North Bergen school board’s child study team.   She sued the board and board officials claiming that she was a victim of gender, ethnic and sexual discrimination.  Saavedra eventually told her attorney in her case that she was in possession of hundreds of documents belonging to the school board, some of which were document originals.  Many of the documents taken by the Defendant were highly confidential, containing sensitive information about parents’ banking records and student psychological reports.  After information about this theft was conveyed by Saavedra’s counsel to the lawyers for the board, the board reported Saavedra’s theft to the Hudson County Prosecutor’s office, who thereafter instituted a grand jury investigation.  The grand jury ultimately charged Saavedra with second-degree official misconduct and third-degree theft.

Defendant sought to quash the indictment on the grounds that Quinlan immunized her from criminal prosecution because of the ultimate purpose for which the stolen documents were taken.  In making this argument, Defendant relied on the seven part test created in Quinlan that was designed to balance the rights of employees to a workplace free from discrimination and harassment against the rights of an employer to operate a business and safeguard confidential documents.  The Supreme Court rejected the Defendant’s reliance on the Quinlan standard as grounds to quash the indictment.  According to the Court, Quinlan was never meant to be a decision that authorized the use of self-help to obtain materials to aid in the prosecution of a discrimination case.  Rather, it was designed to address the narrower question as to when an employer could terminate an employee and not run afoul of LAD’s anti-retaliation requirements.  Although the motive for taking the documents did not supply grounds for quashing an indictment under Quinlan, the Court nevertheless determined that an employee could use either a claim of right or justification defense against the indictment premised upon the articulated reasons for the theft.

The court’s decision in Saavedra will certainly give employee’s reason to pause before removing confidential documents to aid the prosecution of a discrimination lawsuit, which is obviously a positive outcome for employers, and the decision likewise reaffirms the unequivocal right that an employer has to protect its confidential materials, and where appropriate, to seek redress for wrongful employee theft through the criminal process.  Nevertheless, with the Quinlan decision now being reaffirmed by the Court, an employer must still proceed with caution in determining whether it can terminate an employee for theft of documents and not violate LAD’s anti-retaliation provisions.  Given such complexities, employers confronted with such issues should seek legal counsel before terminating an employee in such circumstances.

Plaintiff May Sue Detectives Under New Jersey Civil Rights Act for Securing Premises Without Warrant

By Betsy G. Ramos, Esq.

Two members of the State Police entered plaintiff Denise Brown’s apartment searching for evidence of a home invasion they believed had been committed by her boyfriend. They were looking for a stolen piece of jewelry (a locket) they suspected he gave to her. However, they did not have a warrant or her consent and entered her home to “secure the apartment” while they obtained a warrant. In Brown v. State of New Jersey, 2015 N.J. Super. LEXIS 154 (App. Div. Sept. 11, 2015), Brown sued the State Police and the officers for violating her state constitutional rights under the New Jersey Civil Rights Act.

The case was tried and a jury returned a verdict in favor of the defendants. Brown appealed the denial of her JNOV (judgment notwithstanding verdict), claiming that she was entitled to a judgment because it was undisputed that the police seized and entered her residence without a warrant, consent, or exigent circumstances. In a published decision, the Appellate Division affirmed the dismissal as to the State based upon sovereign immunity.

However, the court reversed as to the troopers and remanded the case for a trial as to damages. The court found that it was undisputed that the troopers enteing the plaintiff’s residence before obtaining a warrant was unlawful as a matter of law.

The Appellate Division noted a “profound misunderstanding” as to the narrow scope of the exigent circumstances exception to the warrant requirement. The court found that the testimony established beyond any doubt that the detectives’ entry into Brown’s home violated the plaintiff’s rights.

Applying the factors for exigent circumstances, the court found they were absent. The troopers were not confronted with any immediate and urgent circumstances. They did not believe that Brown was destroying or removing evidence until they told her they were looking for the locket.

The Appellate Division found it “hard to imagine a scenario more unreasonable than the police telling someone not suspected of any crime that the police wish to search her home for specific evidence and, when she declines, claiming their warrantless entry is justified by her possible destruction of the evidence they just revealed to him.” Because the exigent circumstances the troopers offered as justification for proceeding without a warrant were inadequate as a matter of law, they cannot justify the warrantless entry into plaintiff’s home. Thus, the Appellate Division concluded that the trial court erred in submitting this case to the jury because the detectives’ own testimony made it clear beyond any doubt that the entry into the plaintiff’s residence before securing a warrant violated her constitutional rights.

Litigation and Workers’ Compensation Attorneys Address South Jersey Claims Association

betsy-ramosLora V. Northencharles-holmgrenAndrea L. SchlaferMt. Laurel, NJ – –  On September 9, 2015 Capehart Scatchard attorneys Betsy G. Ramos, Esq., Lora V. Northen, Esq., Charles F. Holmgren, Esq., and Andrea Schlafer, Esq. spoke on “Insurance Fraud” at a continuing legal education seminar sponsored by the South Jersey Claims Association.  Ms. Ramos and Mr. Holmgren focused their presentation on the Insurance Fraud Prevention Act (“IFPA”) as it pertains to liability matters and Ms. Northen and Ms. Schlafer addressed the issue of workers’ compensation fraud.

Certified by the Supreme Court of New Jersey as a Civil Trial Attorney, Ms. Ramos, a Mansfield resident, is an Executive Committee Member and Co-Chair of the  Litigation Department.  She is a seasoned litigator with over 25 years experience handling diverse matters and concentrates her practice in tort defense, business litigation,  insurance coverage,  estate litigation, employment litigation, and general litigation.

In addition to her responsibilities as Co-Chair of the Workers’ Compensation Department, Ms. Northen, a Pennsauken resident, focuses her practice in the representation of employers, self-insured companies, and insurance carriers.  Certified as a trial attorney by the Supreme Court of New Jersey in Workers’ Compensation Law, Ms. Northen is a member of the New Jersey, Pennsylvania, Burlington County and Camden County Bar Associations.

Mr. Holmgren, a Moorestown resident, handles defense litigation in the federal and state courts of New Jersey and Pennsylvania, with a concentration on premises liability, products liability, fraud, construction, estates, employment and professional malpractice.  His clients include individuals, insurance companies, large and small businesses, manufacturers and public entities.

Ms. Schlafer, a Cherry Hill resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation.  Ms. Schlafer received her law degree from Rutgers School of Law in Camden and her B.S. degree in Business Administration and Finance from the College of Charleston, cum laude.  Upon law school graduation, Ms. Schlafer worked as a law clerk to the Honorable Kevin T. Smith, in the New Jersey Superior Court, Gloucester County Vicinage.

Nicholas Dibble Invited to Join Insurance Alliance

nicholas-dibbleMt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Workers’ Compensation Department attorney Nicholas A. Dibble, Esq. has been invited to join the prestigious Claims and Litigation Management Alliance (CLM), a nonpartisan organization comprised of thousands of insurance companies, corporations, corporate counsel, litigation and risk managers, claims professionals and attorneys.

The CLM’s primary goals are to create a common interest in the representation by law firms of companies, and to promote and further through education and collaboration the highest standards of litigation management in pursuit of client defense. Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows.

Mr. Dibble, a Philadelphia resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation. He received his law degree from Rutgers University School of Law in Camden and his B.A. degree in Political Science from Haverford College. Upon law school graduation, Mr. Dibble worked as a judicial law clerk to the Honorable Benjamin C. Telsey, Superior Court of New Jersey, in Bridgeton, NJ.  He is admitted to practice law in New Jersey and Pennsylvania.