NJ Sexual Harassment Policies Pale Beside Those of Corporate America

Colleen O'Dea | October 18, 2018 | Social
State department and agency protocols can differ extensively, or be absent entirely — as is the case with the New Jersey Senate, which has no written hiring protocols in place

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With a $37 billion budget and more than 64,000 full-time employees, New Jersey would rank high on the annual Fortune 500 list of the largest corporations, but the recent case of a man accused of sexual assault getting and keeping a high-ranking state job indicates that the state government does not necessarily act like a business when its employee relations are concerned.

Despite receiving several notices about the allegations against Albert J. Alvarez, officials with the Murphy transition team hired him at a salary of $140,000 as chief of staff at the Schools Development Authority. Administration officials allowed him to stay on the state payroll until a reporter’s question prompted Alvarez to resign his position on October 2.

A recently created bipartisan, joint legislative investigation committee is going to look into the particulars of the Alvarez case, as well as into state hiring practices. Alvarez is the second state worker to leave his job under a cloud in the past month, with the reporting of alleged sexual harassment.

Murphy administration keeping mum on policies

Such a broad examination would seem to have merit; the office of Gov. Phil Murphy is providing few details about its hiring protocols since the details of the Alvarez case became public last week. A spokesperson said on Wednesday that the office could not comment on hiring because of its ongoing investigation. (Murphy has asked former Supreme Court Justice and state Attorney General Peter Verniero to head up the investigation.)

State law prohibits sexual harassment in the workplace, and state government does have a policy banning discrimination at work; sexual harassment falls under that. It also has a written procedure for filing a complaint and how complaints should be handled — reported either to the governor’s ethics officer or another supervisory employee or to the head of the state Office of Equal Employment Opportunity.

Nancy Erika Smith, a New Jersey attorney who has worked in employment law for more than three decades and represented Gretchen Carlson in her sexual harassment case against former Fox News chairman Roger Ailes, said state government’s policies in this area pale in comparison to those in the business world.

If a woman made an allegation like the one against Alvarez in a company, Smith said, “they would have interviewed her, they would have interviewed him. In fact, in the process of hiring at this particular time in the world, most employers would ask, ‘Have you ever been accused of sexual harassment?’”

Further, she said, once an allegation was made against an employee, a business would take immediate action, or face a potentially expensive lawsuit.

“Maybe he would be suspended, even if with pay, so as to get him out of the office,” Smith said. “There’s no way something like this would happen in the corporate world.”

Casting doubt on reporting process

Sen. Loretta Weinberg (D-Bergen) and the chair of the new investigative committee, said she is not sure that the state’s current process is the best system for reporting such problems.

“One of my questions about all this is, should we have an anti-harassment policy for the state of New Jersey that governs all of the so-called authorities, the state government, the Legislature?” she asked. “The EEO does not sound like the right place for this. I’m not going to think to go to the equal employment opportunity office to report” an assault like the one under investigation.

Alvarez was a Murphy campaign staffer who went on to work on the transition team and got the NJSDA chief of staff job last January, although he had been accused by Murphy campaign volunteer Katie Brennan of sexually assaulting her in April 2017. Brennan, now herself a chief of staff in the New Jersey Housing and Mortgage Finance Agency, said she contacted the governor’s chief counsel and later both Gov. Phil Murphy and his wife Tammy after Alvarez was hired and remained on the job for months. She did not say she wanted to discuss a sexual assault, just that she had something sensitive to tell them.

Since the Hudson County Prosecutor’s Office declined to prosecute the case, saying it did not think it had a good chance of getting a conviction, no charge would have been turned up by a criminal background check. That brings up other questions about the hiring process.

Downside of ‘banning the box’

Weinberg noted that the state recently “banned the box” on initial employment applications, meaning a prospective employer can no longer ask whether a person has a past criminal conviction in the earliest stages of applying for a job, though an employer can inquire about a criminal past in later interviews. Should the state ask about incidents for which a person has not been charged?

“We have taken steps to enable people to get a second chance,” she said in referring to those who completed serving a criminal sentence. “If there is something that has only been investigated, is that something a potential public employer should know about? We need to hear from people about that.”

Prospective employees for the offices of the governor and the attorney general and high-level jobs in some other departments do undergo a “character and criminal background investigations” conducted by the New Jersey State Police Governmental Integrity Unit.

“These positions include, but are not limited to, cabinet members, judicial appointments or reappointments, board of public utilities, state parole board, pre-employment, and appointments to the Casino Control Commission,” according to the unit’s website. “More specifically, these investigations focus on positions in which honesty, integrity, and trustworthiness are essential to the candidates’ ability to discharge their professional responsibilities.”

It’s unclear whether such a check would have turned up the allegation against Alvarez or, if it had, whether that would automatically have disqualified him from employment.

New Jersey has a robust civil service application and exam process for hiring rank-and-file workers throughout state government. But there is no centralized employment process for the hiring of non-civil service workers, called unclassified or at-will employees. Each state department handles its own hiring for these positions that require more specialized skills or are higher level.

Unanswered questions

The state Civil Service Commission did not respond to questions about how many at-will workers are currently working in state government. A Department of Treasury spokeswoman said the state employed 64,133 full-time workers across the three branches of government as of September 28, but she did not have a breakdown of how many are civil service and how many are at-will. A request for that information to the state Civil Service Commission went unanswered.

Also unknown is how many of these workers are truly political appointees, people who got their jobs primarily because they worked on the Murphy campaign or were referred by someone involved in politics, rather than through a competitive job search.

Ben Dworkin, director of the Rowan Institute for Public Policy and Citizenship at Rowan University, said patronage is a longstanding tradition in American politics that is not necessarily bad. But the awarding of patronage positions does not lend itself to rigorous hiring practices.

“Patronage is necessary: You were elected by the people; you should be able to bring in your own team to lead,” he said. “Because you are being hired — and could be fired — at the pleasure of the chief executive who got elected, historically, there have been no set rules as to who gets the jobs.”

John Weingart, director of the Eagleton Institute of Politics’ Center on the American Governor, said every governor handles hiring somewhat differently.

“In general, each administration sets its own procedures,” he said. “At the federal level, the Obama administration seemed to go to great lengths to try to avoid hiring missteps. The result was a largely scandal-free eight years, but also lengthy vacancies in some posts and on many federal commissions as potential nominees were required to file extensive background and financial data and then often wait months for that information to be reviewed and accepted … At the state level, I think most governors adopt procedures that are more like Obama’s but, they hope, somewhat more expeditious.”

How the Judiciary judges potential hires

The state Judiciary has a written policy regarding background checks for prospective employees that discuss in detail what kind of criminal information must be disclosed and how that is used to determine employment.

Under this policy, for instance, a person must disclose pending charges, drunk driving offenses, an expunged criminal record, and any pre-trial intervention admissions. A person who fails to fully disclose such incidents may be disqualified or terminated. Charges that were dismissed do not have to be disclosed. A person who has a prior record is not automatically disqualified, but the record will be reviewed based on other factors, including the person’s age at the time of the offense, the seriousness of the offense, evidence of rehabilitation, and the nature of the job sought.

The judiciary will also conduct internet searches on those given a conditional offer of employment and anything that turns up would constitute illegal activity or could violate the Code of Conduct for Judiciary Employees would be considered in determining whether to hire the person.

The judiciary also has policies prohibiting discrimination and workplace violence, which require investigations and decisions about the outcome.

The Legislature has its own anti-discrimination and harassment policy, adopted just last month to replace a former policy considered less comprehensive. It also spells out what is considered improper conduct and how it should be reported; it also requires an investigation.

At the moment, the Senate does not have written hiring protocols similar to those of the Judiciary, although it would be open to putting these in place if necessary.

“The short answer is that we don’t currently have a formal, written policy that includes background checks for hiring,” said spokesman Richard McGrath. “In practice, we would take seriously any allegations or information about a potential employee who committed or was accused of committing a serious offense. If we became aware of any offenses by any employee or job applicant, we would take swift and decisive action. We just put in place a strong anti-harassment policy to prevent any abusive conduct in the workplace and it can be updated to include hiring practices if we find that a stronger definition is needed in our policy.”

The Assembly did not respond to a question about its hiring procedures.

Weinberg said she would like the committee to work “quickly” but said that, as a practical matter, it likely won’t start its real work until after Thanksgiving. Assembly Speaker Craig Coughlin, D-Middlesex, still needs to appoint members from the lower house. Weinberg said she is unsure if the committee will have subpoena power. It might not be necessary, provided the administration cooperates.