Nick Lotito & Seth Kirschenbaum

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When blowing the whistle constitutes a crime

Here in the United States, federal laws -- called whistleblower protection laws -- guard employees from adverse employment after they report unsafe working conditions or other violations of state and federal laws. These protections are much appreciated by employees all across the nation as they encourage employees to speak up and take civil action against employers who are believed to be breaking the law.

Though this may be true in most cases, protection may not be afforded to an employee who steals information intended to back up their whistleblower claim. Our readers here in Georgia may know this all too well from the Edward Snowden case two years ago. While some believed that he was a whistleblower and should have been afforded protections under federal law, his theft of information made his actions illegal, much to the chagrin of some people.

The application of whistleblower protection laws has always been a thorny subject, specifically in cases where a whistleblower has felt the need to take information without permission in order to bolster their case. This became apparent once more just recently when an out-of-state court chose to uphold an indictment against a woman who allegedly stole documents in order to prove discrimination and retaliation in her workplace.

For those here in Atlanta who are unfamiliar with this particular case, the crux of State v. Saavedra was whether the indictment against the employee should have been dropped on the grounds her theft of confidential files was to support her whistleblower claim. In her appeal, the employee cited the court's decision in Quinlan v. Curtiss-Wright Corp.which she claimed protected her actions under the Law Against Discrimination.

Unfortunately for the employee, the New Jersey Supreme Court disagreed with her assessment of the law, pointing out that Quinlan only protectsa plaintiff from criminal charges if they can prove a "claim of right" to the evidence. Although the court acknowledged that the employee could still use "claim of right" as a defense at trial, the argument did not hold on appeal. That's because, as the court pointed out, the employee could have obtained the documents without resorting to theft.

Cases like this show how complex theft laws can be, especially when someone believes that they are doing it for the right reasons. It's because of this complexity that legal representation is not only encouraged but perhaps even necessary in some cases.

Sources: The National Law Review, "New Jersey Whistleblowers May Face Criminal Charges for Theft of Company Documents," June 26, 2015

The United States Department of Labor, "Worker Protections," Accessed June 30, 2015

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Nick Lotito & Seth Kirschenbaum

Former Federal Prosecutors

918 Ponce de Leon Avenue, N.E. Atlanta, GA 30306 Phone: 404-692-5168 Fax: 404-872-1622 Atlanta Law Office Map