You have worked as a clerk at a school district for some ten years.  You have sought promotion but have been turned down.  You are a woman and realize that some men are getting paid more than you for similar work.  You see some pertinent documents and take them home to make copies, since you realize you may have to file suit.  Is that theft?  Those facts are close to the situation in State of New Jersey v. Saavedra, No. A-1449-12T4 (N.J. Ct App. 12/24/13).  Ms. Saavedra used the documents in her discrimination lawsuit.  So, the state of New Jersey prosecuted her for taking those documents.  See appellate court decision. 

There are ample cases finding that it is not "theft" to take documents home if other co-workers or managers also take documents home.  Even if an employer has a policy against taking documents, what matters is what the employer actually does.  If the employer allows workers to take documents, then it is not theft for one worker to take them for use in a subsequent discrimination lawsuit. 

Ms. Saavedra took hundreds of documents home.  Ms. Saavedra’s employer was a school district.  Some of the documents contained sensitive information about parents and students.  They included information regarding at least one bank account and one list of students who would see a school psychologist.  The school said it was liable for disclosure of those documents.  But, as Workplace Prof points out in his blog, the disclosure was limited to the lawsuit.  And, in perhaps every discrimination lawsuit, sensitive documents are used.  Typically, the parties enter into a written agreement to keep such documents confidential.  That is, the parties essentially agree that the documents will be used only for purposes of the lawsuit.  See Workplace Prof blog post.  So, surely, any sensitive documents would have been protected. 

Ms. Saavedra was prosecuted for "official misconduct."  Can a clerk be guilty of "official misconduct"?  That is a good issue for appeal.  Too, Ms. Saavdera’s case may differ from the typical employee taking documents home.  The school district had a policy against taking documents home and they conducted training on that policy.  

The dissent would have vacated the conviction simply because the law is not clear that taking documents for use in protected activity.  New Jersey has a state statute that explicitly protects an employee who uses documents from work for a civil rights lawsuit. 

The water is muddied with this decision.  It is not theft to take papers home, if the employer allows that practice in general.  But, if the papers contain sensitive information and if the employer does indeed train its employees not to take papers home, the worker incurs risk of being prosecuted.  What if the employer allows some documents for home use, but not too many documents for home use?  What if the employer has some training, but not recently?  How recent is "recent"?  The water is indeed muddied on this issue.