Hey, it's Mark, and welcome back for more thrilling employee stuff that you need to know about. Today's topic uh is actually really important. Um, employees need legal advice before downloading company information to build a case of discrimination and retaliation. I think you know what I'm talking about, because I see it all the time and people do it all the time. Imagine you have been documenting harassment for months. You have emails providing your boss made discriminatory comments, you've kept records of how male colleagues doing identical work get promoted and paid better while you're passed over. You know you have a case. So late one night before your upcoming performance improvement plan meeting, that feels like a setup for termination, you forward key emails to your personal account. You download the spreadsheet showing pay disparities, you take screenshots of the discriminatory messages. You even upload some documents to ChatGDP to ask if you have a legal case. You think you're being smart, preserving evidence before it disappears. You just created a massive liability problem that could sink your entire case. The confidentiality agreement you forgot you signed. Remember that one? Here's what I see with increasing frequency in our employment law litigation practice, employees with legitimate discrimination, harassment, or retaliation claims who have unknowingly violated confidentiality agreements, non-disclosure agreements, or data security policies in their attempts to gather evidence. When they finally consult an attorney, we discovered the following. They've downloaded confidential company information to documents to personal devices. They've forwarded internal emails to personal accounts. They have uploaded sensitive information to AI chatbots for free legal advice. They shared company information with friends, family, and on social media. And they violated non-disparagement clauses by venting their frustrations about their employer online. Every single one of these actions can and frequently does get used against the employees later when they try to pursue their legitimate legal claims against the company. It does not really matter whether the company did something wrong. If the employee does any of these things, you can uh they can be used against the employee. These actions can even provide a viable claim against the employee by the company. But you say I'm a whistleblower. That doesn't always work. You might think, well, I was gathering evidence of illegal discrimination, that's protected activity. I'm a whistleblower. You'd be logical to think that, but you would also be wrong in most cases. Well, there are some statutory protections for whistleblowers who retain documents relevant to legal violations, particularly under laws like the Illinois Whistleblower Act or the False Claims Act, a federal statute. These protections uh, number one, narrow are narrow in scope. They often require reporting to the government agencies, not just gathering evidence. Two, they're fact-specific. Whether you're protected depends heavily on what you downloaded, when, why, and how. Three, they're state dependent. Protections vary dramatically by jurisdictions that you work and reside in. Four, they're easily forfeited. Courts look at whether your document retention was reasonably related to your claims. Even worse, many employees think Title VIIs, that's a federal statute, anti-retaliation provisions of or state discrimination laws automatically protect their evidence gathering activities. They don't. These laws protect you from retaliation for opposing discrimination or participating in investigations. They don't give you a free pass to violate contractual obligations or company policies. The AI trap. Your free legal advice is now evidence against you. We've had multiple consultations recently, and I've spoken about it in other podcast episodes, where potential clients uploaded confidential information, uh company information to AI chatbots before contacting an employment attorney. They thought they were being resourceful, getting preliminary legal advice before investing in a lawyer. Instead, number one, they waived attorney client privilege. Communications with AI are not privileged. If the company discovers you use their confidential information this way, they can subpoena those interactions. Hello? Two, uh, you violated confident confidentiality agreements you already signed. Most employment agreements prohibit disclosing confidential information to third parties. AI companies are third parties. You just breached that contract. Three, created evidence of bad faith on your part. Employers will argue you weren't gathering evidence for legitimate legal purposes, you were shopping for a case. Four, potentially violated computer fraud laws. Hmm, didn't think of that one, did you? Depending on your company's systems and policies, unauthorized data extraction can implicate state and federal computer fraud statutes. Scary, huh? Well, we've seen it happen. What the law should be versus what it is. The law should strongly protect employees who gather and disclose legal to legal counsel, meaning an employment attorney, information relevant to protect uh to relevant to potential discrimination, harassment, retaliation, and whistleblowing or other employment law violations. The public interest in exposing illegal workplace conduct should outweigh corporate confidentiality interests in most cases. Some jurisdictions, like Illinois, with its Whistleblower Act, and certain federal circuits interpreting the False Claims Act protections have moved in this direction. Courts have recognized that confidentiality agreements cannot be used as swords to silence legitimate whistleblowers. But these protections are not universal, not automatic, and not guaranteed. The reality is that most employers operate under a patchwork of state laws with varying protections, contractual restrictions that may or may not be enforceable, company policies with criminal penalties for violations, judges who may or may not be sympathetic to your evidence gathering techniques. You cannot assume you're protected just because you believe you're exposing wrongdoing. I've personally witnessed this many, many times over our very long career. The employer's retaliation playbook. Let me get your attention on this one. Here's what happens when you violated confidentiality agreements while gathering discrimination evidence. Phase one, discovery. Your employer's IT department flags unusual data access or email forwarding patterns. This happens more often than you think. Companies monitor these activities. They actually use AI to monitor you. Two, investigation. Rather than immediately addressing your discrimination complaints, the company launches an investigation into your policy violations. This investigation gets documented meticulously. Three, discipline or termination. You get fired not for complaining about discrimination, which would be illegal retaliation, but for violating confidentiality agreements, data security policies, or accepting use uh acceptable use policies. Now your employer has what's called an illegitimate non-discriminatory or non-retaliatory reason for termination, your case just became severely impaired or even destroyed. I'd also note there's a doctrine that courts use. It's called the after-acquired evidence doctrine, which basically is that if they discovered that you did something that they would have prosecuted you for or through the civil case, uh you don't you can't win your damages in your case. So you can win your war, but you get no damages. That's actually happened. There was a famous case against Bering or Ingelheim, an attorney internally, did that years ago. Uh, and he proved his case of age discrimination, but he lost. Um in that case, I think he was unable to demonstrate his damages. Um, and there was some after-acquired evidence issues as well. Phase four, litigation defense. When you sue for discrimination, the company argues you were you've been terminated over legitimate policy violations, not retaliation. You cannot be trusted because you violated confidentiality agreements, your evidence was improperly obtained and you should be excluded by a court. You should face counterclaims for breach of contract or theft or trade secrets. Very serious accusations. Even if you ultimately win on your discrimination claims, you've made your case exception exponentially harder and more expensive to prove. I'll add an even further layer. The fruit of the poisonous tree problem in criminal law, there's a doctrine called the fruit of the poisonous tree. Evidence that's obtained illegally cannot be used in court. Forget what you see on TV, by the way. While employment law doesn't work exactly the same way, courts can and do exclude or limit evidence obtained through improper means. More importantly, your credibility becomes the central issue rather than your employer's discrimination. Instead of talking about the harassment and discrimination in settlement negotiations or negotiations or trial, you're defending your document retention practices and you've shifted the narrative from their wrongdoing to yours. What should you do instead? If you're experiencing discrimination, harassment, or retaliation at work, here's the proper sequence of actions to follow. Before you download, forward, or save anything. One, consult an employment attorney immediately. If you are having any issues at work whatsoever, you need a consultation with a skilled employment lawyer. We can review your specific confidentiality agreement and advise you on what evidence gathering is legally protected. Don't make any assumptions. Get advice on documentation methods. There are often legal ways to preserve evidence without violating agreements with your company. Like keeping contemporaneous personal notes, that's free. You could do that all the time, make a journal, using company-provided communication tools properly, like email, setting your employer up by using proper email timestamps, you remember those? Or making official complaints that trigger preservation obligations. Understand your specific restrictions. Your confidentiality agreement, IP assignment, and data security policies are contracts that matter. An employment attorney can tell you exactly what you can and cannot do. Never do the things that without legal advice first. Never forward company emails to your personal accounts. People do it all the time, thinking they're pretty smart. Never download files to a USB drive or personal devices. I just saw that in a TV episode last night. Upload company documents to AI chatbots. I mean, let's not be stupid, folks. I mean, that's just idiotic. Take photos of confidential documents with your phone. People do it all the time. I get a lot of screenshots off phones that I have to then PDF and save. Never share company information on social media with non-attorneys. I mean, the first part of that is why would you ever think about sharing anything on social media? It's like you're going to get some viral feedback and people are going to come to your cause. I mean, get real. It's not going to happen. Never copy proprietary information, trade secrets, or customer data. It happens a lot, especially in non-compete cases. People stupidly just download the entire list of customers. It's just asinite, but they do it. What you can technically do is the following, but verify this with counsel first. Keep personal contemporaneous notes of incidences. A journal. You know, you can refer to an email you got. You can you can quote what's in the email. You can do anything you want in your journal. Be as specific as possible. Save your own performance reviews if you if it was provided to you. Uh document publicly available information. You know, create a file. You know, you're smart, you can create an investigation file on your computer, on your personal laptop, not the company laptop, because employee monitoring software is there, you can actually see it or they see what you're doing. Document publicly available information. I just said that. Retain your own communications if company policies permit. Now printing something off your computer at home of an email, just stick it in a folder. You can do that. Uh report to a government agency which may trigger your right to retain evidence, like uh like a like the EOC or OSHA. Uh request a copy of your own personal records. Some states provide this, some like Connecticut does, New York doesn't. The AI legal advice problem deserves special attention. And I've already just lambasted on this issue, but let's back to it, go back to it. I cannot stress enough. AI chatbots are not lawyers, they're not confidential, and they cannot give you legal advice ever. I know they're out there and you can use them, and it's just so easy. And we get these emails from potential clients sending us all their information, they did their research, and like, I don't care. It's not real legal advice. It's I guess at this juncture of the AI development stage, it's there to in educate you about what's possible, but then you have to do your actual fact-checking. When you upload company documents to AI tools, you've transmitted confidential information information to a third party, as I said earlier. You've created a discoverable record of that transmission. Discoverable because when you get into a legal case, they can ask for discovery requests of exactly that issue, and you have to turn it over. You potentially violated multiple agreements and laws with your employer. You've received advice that may be completely wrong for your jurisdiction. You've waived any privilege that might have protected those communications whatsoever because AI is not an attorney. The money you saved, because you're trying to be smart by not consulting with an employment attorney will cost you exponentially more when your employer discovers that you did it. So don't do it. Here's a real-world hypothetical. Imagine the following. I consult with a potential client who had uploaded dozens of company documents to an AI chat box bot, sorry, asking if uh she had a discrimination case. The AI chat box told her what she did, encouraged her then she should even document uh add more documents asking what damages uh she could recover. Her employer discovered the uploads through a mul uh routine security audit. They terminated her for violating uh data security policies and confidentiality agreements. Now she faces a loss of her strong discrimination case, overshadowed by her policy violations. Uh she's potentially experiencing counterclaims for breach of contract by her employer, and possible computer fraud allegations by the employer. Uh, and she has no protections under whistleblower statute because uploading to AI doesn't count as reporting to authorities. Had she called an attorney first, she could have advised, uh we could have advised her on a proper evidence preservation, uh, helped her make appropriate reports to government agencies that would trigger whistleblowing protections, and built her case without creating these liability landmines. But what if evidence disappears, they say. Hear that a lot. The most common concern I hear is that if you don't save evidence now, the company will delete it once in once if they know I'm building a case. I do hear that a lot. Uh it's a legitimate concern. Here's the proper way to handle it. Consult with an employment attorney who can send a preservation letter. What the hell is a preservation letter, you're asking? It's a letter saying to the employer, uh, we have a case against you and you're hereby notified, don't delete anything. And then that's what happens. They have to send a letter out. You've probably seen uh information flow internally of other people who've um you know the company's said that they've brought a case, so you need to preserve your information on your computers. Don't delete it. So once the attorney gets involved, we can send in informal uh litigation hold letters requiring the company to preserve the evidence. As I said, destroying evidence after receiving such a letter creates a massive liability problem for the employer. Uh you can file charges with a government agency. Like I said before, the EOC, there's state civil rights commissions, there's OSHA, and other agencies can compel document preservation and production. Uh use proper documentation methods. Your attorney can advise on evidence gathering techniques that don't violate your agreements. Uh rely on discovery. Even if the evidence is deleted, forensic recovery, which gets expensive by the way, in discrimination cases, uh, and spoilation sanctions exist for this exact reason while you're in court. You do not need to become a midnight document thief to protect your case. You need an employment lawyer who knows how to properly preserve evidence through legal channels. The bottom line, call an employment attorney first if I haven't figured that out by this latter juncture of this episode. Employment law is complex. I apologize in advance. Uh it doesn't need to be. I've tried to dumb it down to its simplicity. Um, but it it is the word complex is probably overly stating it. It just has a lot of different rules. There is a lot of patternistic behavior of handling cases and claims. Um but nonetheless, uh state-specific and full uh it's full of traps for the unwary uh employment laws, and what might seem like common sense, gathering evidence of discrimination can destroy your case if done improperly, as I've been talking about. So before you download company documents, forward emails to personal accounts, upload anything to AI, share company information to anyone other than your lawyer, post it on your online social media page about your employer, call an employment attorney. Um we can review your confidentiality agreement, assess your situation, advise you on proper evidence preservation, and help you build your case without creating legal liability. Problems for you. Cost of consultation is infinitely less than the cost of making evidence, making an evidence preservation mistake at the start of your case, the cost of violating confidentiality agreements while trying to build your case on your own. Question mark, it could be everything. Your job, your case, potentially your financial future if you face counterclaims. Your instinct to document discrimination and preserve it is correct. Your method of doing so without legal guidance can be catastrophic. While the law should clearly protect employees who gather evidence of workplace violations, it doesn't yet provide consistent guarantee protection. And until it does, you have to listen to this postcast more often because you must navigate these issues carefully with your expert legal advice or expert legal guidance for me, others in my office. Don't let your employer turn your legitimate and discrimination claim into a case about your policy violations. Don't hand them a retaliation defense on a silver platter. Please don't do that. Don't destroy your credibility by violating confidentiality agreements, even if you think it's justified. Document, preserve, report. But do it the right way with an employment attorney guiding you from the beginning. Hope you enjoyed this episode. I did, as you can tell. Uh it was actually written by uh one of our attorneys, Chris Avkali, uh, who is a seasoned employment attorney, and he can be available to uh talk to you uh in a consultation about this exact issue. So talk to you soon. Hope be well, and thank you.