No, Stealing Personnel Files Is Not Protected Activity (But the analysis doesn’t end there) 11-21-18

https://www.jdsupra.com/legalnews/no-stealing-personnel-files-is-not-95840/

Bruce’s Summary: Although the decision in this case was not handed down in California, this particular Circuit Court of Appeals message is clear, removal of other employees’ personnel files from the workplace is not a “protected activity” and was a legitimate non-discriminatory reason for the individual’s termination. It appears that the individual employee felt she was being discriminated against and copied several personnel files that were shared with the EEOC in an effort to support her allegations. According to the author, eventually the individual sued her employer and then during discovery had to provide the personnel files she had taken and copied. In response, her employer terminated her for violations of internal policy. The claimant’s case was dismissed.
BUT, as the author indicates, the Circuit Court’s decision appears to leave the door open to further discussion as to those state laws (or a corresponding state agency) that might be in conflict with Title VII claims, especially when the question is one of placing restrictions or limits on the ability of the EEOC to seek the information contained in personnel files. Time will tell.
However, the current message for Human Resource Professional’s is clear, do you have a process for record keeping, do you know who is handling your Personnel Files, do you know who has access to archived personnel files, (sometimes they are comingled with other departmental files off site) do you know who actually has a key or badge to the Human Resources Department, and then ask, who else has access to those files (do your janitorial services have clearances?). As the employer experienced above, who would think a long-time employee would do such a thing. More importantly, how did they have access?
For those who aren’t sure, good time for a HR departmental record retention audit.
“None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com