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Strong privacy policy can curtail rifling through files

by on
in Employment Law,Human Resources

Employees who are involved in employment disputes often think they can simply gather up any evidence they find lying about and turn it over to their lawyers.

Smart employers try to limit the damage that revealing such confidential information may bring by holding all employees to reasonable privacy and confidentiality rules. Those rules can’t prevent an employee’s attorney from asking about the documents during discovery, but they can keep employees from hitting the copier in the middle of the night.

Recent case: Kathy Niswander worked from home as a claims adjuster for the Cincinnati Insurance Company. When she learned of a class-action lawsuit against her employer, she opted in. She went through her files, looking for anything to support the case.

Niswander ended up sending her attorneys client information that had nothing to do with the litigation. When the company found out, it fired her for breaching the company’s confidentiality and privacy policy.

She charged retaliation for participating in the lawsuit and argued that she had a right to give her attorneys the company documents.

The 6th Circuit Court of Appeals disagreed in this case. It came up with a six-step balancing test to decide whether turning over documents was legally protected. Elements of the test are:

  1. How the documents were found
  2. To whom the documents were turned over
  3. The contents, including whether they contained confidential information or were relevant to the lawsuit
  4. Why the documents were turned over
  5. The breadth of the company privacy and confidentiality policy
  6. Whether the employee could have found a way to preserve the evidence without turning over confidential information

The court concluded that Niswander went too far. The company had the right to fire her for violating its privacy policy. (Niswander v. Cincinnati Insurance, No. 07-3738, 6th Cir., 2008)

Final note: Check with counsel before disciplining anyone for turning over documents. Your attorney can help decide whether the disclosure was protected activity or grounds for discharge.

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