Use confidentiality clause to guard against ‘Litigation theft’

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in Compensation and Benefits,Employment Law,Firing,Human Resources

Employees pursuing legal actions against their employers sometimes snoop around to see what documentary “evidence” of wrongdoing they can find around the office. They may copy, scan, e-mail or fax information to their lawyers, hoping to bolster their cases.

Protect yourself: You need a clear policy against such unauthorized document distribution. A confidentiality clause in your company’s policies allows you to take disciplinary action when an employee is caught purloining information. It isn’t retaliation to discharge an employee for stealing or copying company documents.

Recent case: Kathy Niswander worked from home for the Cincinnati Insurance Company and joined in a class-action Equal Pay Act (EPA) lawsuit against her employer. Her attorneys suggested she look through her office files for any information that might prove useful in the current or a future lawsuit. She copied and forwarded to her attorneys reams of documents.

When the company found out, it fired her for violating its code of conduct and policies. It claimed the documents included confidential and private customer information. Niswander sued, alleging retaliation for the EPA lawsuit.

The court tossed out the case. It concluded that the company had a valid reason for firing her unrelated to her EPA lawsuit—she violated company policy by giving her attorneys the documents. If her attorneys wanted the documents, they could have subpoenaed them instead. (Niswander v. The Cincinnati Insurance Company, No. 5:06-CV-1086, ND OH, 2007)

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