Misappropriating Data to Further a Claim—Theft or Protected Conduct?

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With the advent of technology in the modern workplace, an enormous amount of data is created and has the potential to end up in the hands of an employee who is pursuing an employment-based claim against his or her employer. The proliferation of such data increases the risk that such an employee will gain access to sensitive data, either legally or illegally, and turn it over to counsel for use in the litigation. Another possibility is that the employee will disseminate the data to similarly situated employees to assist in their pursuit of similar claims. Is such an employee protected from termination or some other adverse employment action on the ground that he or she has engaged in protected activity? [Reprinted with permission of the American Bar Association from Fall 2011 E-Newsletter of ABA Section of Litigation Employment and Labor Relations]

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