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The “self help” doctrine: Employer can’t unilaterally fire an employee for gathering company documents to bolster her claim of bias

It is not unusual for a client to show me company documents in order to evaluate the merits of a claim. On more than one occasion, when I cite these documents in correspondence with defense counsel, they insist that the employee violated company policy by sharing these documents with an outside party. I, like other plaintiff’s counsel, respond that company policy does not trump the law on illegal discrimination. Some times, the company threatens to file a counterclaim against the employee for disclosing the documents.

In a decision that many in the employment law bar are calling a “game-changer,” the Massachusetts Supreme Judicial Court resolved this issue for the employment law bar. The plaintiff, an associate at a large law firm, claimed that after she reported that a partner made inappropriate comments to her, she began to receive retaliatory negative evaluations. After the plaintiff took maternity leave and was demoted, she began searching the firm’s document management system for evidence to support her discrimination claims.  She shared these documents with her attorney. The firm then fired her, claiming she violated her ethical obligations to the firm. Notably, the sensitive documents the plaintiff discovered were saved publicly on the firm’s system so that anybody could access them.

In overturning summary judgment and ordering the case to go to trial, the Court held that “an employee’s accessing, copying, and forwarding of documents may, in limited circumstances, constitute protected activity, but only where the actions are reasonable in the totality of the circumstances.”

The court adopted a seven prong balancing test for self-help discovery:

  1. How the employee accessed the materials.
  2. The relevance of the materials balanced against any disruption of the employer’s business.
  3. The strength of the employee’s expressed reason for actually copying the document as opposed to simply telling his/her attorney about the content.
  4. What the employee actually did with the document.
  5. The nature and content of the document balanced against the employer’s need for confidentiality.
  6. The existence of clearly identified company policies protecting privacy and confidentiality.
  7. The public policy that favors the elimination of discrimination in the workplace.

The Court recognized that although a document may be privileged, that fact alone does not outweigh the other prongs. The Court ruled that the shield of confidentiality should not be turned into a sword to defeat discrimination claims by employees  whose proof of discrimination may be found in such confidential sources.

The reported decision is Verdrager v. Mintz Levin et al.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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