strict confidentiality directive

Katie Brennan Lays Out Policy Reform Recommendations to Address Sexual Violence, Harassment in NJ Politics

February 18, 2020 | Smith Eibeler LLC

FOR IMMEDIATE RELEASE

Brennan plans to present to Weinberg working group

TRENTON (February 18, 2020)–Sexual assault survivor Katie Brennan laid out a list of policy reform recommendations to improve the criminal justice process for victims of harassment, sexual assault and sexual misconduct in New Jersey in a letter to Sen. Loretta Weinberg and members of the Workgroup on Harassment, Assault and Misogyny in New Jersey Politics sent last week. Brennan, who has advocated for sweeping policy change since coming forward in October 2018 about her own sexual assault by senior Phil Murphy campaign and administration staffer Al Alvarez, also said she would like to present to the Workgroup about her proposals at its next hearing in March.

New Jersey DCR Releases Findings and Recommendations Aimed to Prevent and Eliminate Sexual Harassment

February 18, 2020 | Smith Eibeler LLC

The New Jersey Division of Civil Rights (DCR), in partnership with the New Jersey Coalition Against Sexual Assault (NJCASA), has released its report and recommendations to address the systemic problem of sexual harassment in New Jersey. The report entitled “Preventing and Eliminating Sexual Harassment” is the culmination of information, expertise and testimony provided by various experts, advocates, survivors and state governmental organizations concerning sexual harassment and abuse within both the workplace and in places of public accommodation. Following the release of the report, Governor Murphy announced that he will support several of the legislative initiatives recommended by the DCR to strengthen New Jersey sexual harassment law.

Sexual harassment at the workplace and in places of public accommodation are prohibited under the New Jersey Law Against Discrimination. Under New Jersey state law, employers and places of public accommodation have a legal obligation to have effective anti-harassment policies in place to prevent, stop and remediate workplace sexual harassment. The factors used by courts to determine whether an employer’s anti-harassment policy is effective are: (1) whether there are formal policies prohibiting harassment in the workplace; (2) whether there are formal and informal complaint structures for employees to report violations of the policy; (3) whether the employer provides anti-harassment training to all employees, including mandatory training for supervisors and managers; (4) whether the employer has effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and (5) whether the employer has demonstrated an unequivocal commitment from the highest levels of the employer that harassment will not be tolerated, and commitment to the policies by consistent practice.

Employers who fail to have effective anti-harassment policies in place can be held liable for the sexual harassment of employees by supervisors, co-employees, customers or other persons associated with the business. Similarly, places of public accommodations must also take affirmative and proactive steps to assure invitees are not subjected to sexual harassment while at their place of public accommodation. Places of public accommodation are businesses, agencies, organizations or other entities that are open to the public. For example, schools, retail establishments, governmental buildings and governmental campaigns are viewed as places of public accommodation. As with any employer, places of public accommodations have the same duties to have effective anti-harassment policies in place that prevent and keep persons safe from sexual harassment.

New Jersey’s Strict Confidentiality Directive Continues to Silence Victims of Sexual Harassment

April 22, 2019 | Smith Eibeler LLC

New Jersey’s State Policy Prohibiting Discrimination in the Workplace is considered amongst many New Jersey employment lawyers as being one of the least protective of employee rights in the entire country. Unfortunately, the newest revisions proposed by the Civil Service Commission do not provide any meaningful improvement for State employees governed under the State’s anti-harassment policy, and particularly with respect to how it conducts investigations of claims of sexual harassment. In fact, when it comes to New Jersey’s controversial “strict confidentiality directive” policy, the proposed changes make the New Jersey’s anti-harassment policy even worse for victims of sexual harassment and discrimination.

Much has been written over the past week regarding the Civil Service Commission’s attempts to strengthen the strict confidentiality directive. While the Civil Service Commission’s proposed revisions could worsen the penalties for breach, the current version of the strict confidentiality directive in effect continues to require incidents of sexual harassment from the public. What many of the news reports seem to have missed is the devastating impact of the current strict confidentiality policy has and continues to have on silencing victims of sexual harassment.

The current strict confidentiality directive in place expressly threatens state employees with discipline up to and including termination if the state employee exercises his or her constitutionally protected right to speak out about allegations of harassment within the state workplace. A state employee who makes a complaint of harassment or discrimination, or is requested to participate in a discrimination or harassment investigation, is required under current state regulations and practice to keep all aspects of the investigation confidential. This means, for example, that if a state employee is the victim of sexual assault or harassment at her state job and she complains about it to the State’s EEO/AA office, she is forbidden under current regulations and practice to tell a lawyer, a co-worker or even her spouse anything about what happened. The strict confidential directive remains in place and every state employee must abide by it or be subject to discipline. N.J.A.C. 4A:7-3.1(j), states:

Katie Brennan responds to Verniero report

February 6, 2019 | Smith Eibeler LLC

FOR IMMEDIATE RELEASE

TRENTON (February 6, 2019)–Following is a statement from Katie Brennan in response to the findings of Peter Verniero’s inquiry into the vetting and hiring processes of the Murphy administration’s transition office:

“It’s clear from the report that there was a lack of accountability and effective policies and procedures to address a glaring personnel problem in the Transition. I appreciate the recommended reforms and I look forward to seeing additional recommendations from the Joint Select Legislative Oversight Committee so that comprehensive reform can be implemented.

Katie Brennan files Emergent Application Seeking to End the State of New Jersey’s Use of Strict Confidentiality Directive

January 8, 2019 | Smith Eibeler LLC

Smith Eibeler, LLC, on behalf of our client, Katherine Brennan, has filed an Order to Show Cause For Temporary and Preliminary Restraints against the State of New Jersey (hereinafter, the “State”), from (1) enforcing the “strict confidentiality directive” found in N.J.A.C. 4A:7-3.1(j) against Ms. Brennan and any witnesses in the EEO/AA investigation being launched in response to her December 4, 2018, testimony before the Legislative Select Oversight Committee (“LSOC”)(hereinafter, the “EEO/AA Investigation”); (2) requiring Ms. Brennan to participate in any EEO/AA investigation until after this litigation and any criminal proceedings resulting from Ms. Brennan’s allegation of sexual assault are completed; (3) requiring Ms. Brennan and other witnesses in the EEO/AA Investigation to sign the “strict confidentiality directive” form; (4) requiring the EEO/AA to investigate the numerous violations of the State’s Policy Prohibiting Discrimination in the Workplace (“State Policy”) as set forth in the Complaint; and (5) declaring the “strict confidentiality directive”of N.J.A.C. 4A:7-3.1(j) as null and void.

For the past year, the State has refused to conduct any investigation into any of Ms. Brennan’s reporting that she had been raped by Alvarez. Ms. Brennan exhausted all possible internal avenues of recourse and received no aid or support. Having no other option, Ms. Brennanwas compelled, as a last resort, to bring her allegations into public light. On October 14, 2018, her story was published in The Wall Street Journal. The article laid out in detail not only the rape Ms. Brennan had endured, but also her extensive efforts to prompt the State, through complaints to numerous high level State officials, to take action.

Ms. Brennan’s act of publicly telling her story accomplished what her numerous internal complaints and reports could not: it triggered investigations. As a result of the October 14 Wall Street Journal article, in or about October 2018, numerous investigations and/or reviews were launched in various departments of State and county government, including: (1) an ongoing review by the Middlesex County Prosecutor’s Office of the criminal investigation conducted by the Hudson County Prosecutor’s Office (“HCPO”) into Ms. Brennan’s criminal complaint; (2) a review by Attorney General Gurbir Grewal and the Office of Public Integrity and Accountability (“OPIA”) into Hudson County Prosecutor Esther Suarez’s involvement in the investigation of Ms. Brennan’s allegations of sexual assault; (3) the ongoing investigation by the LSOC into how sexual misconduct complaints are handled by the state, as well as hiring practices; (4) Governor Murphy’s directive to the Division of EEO/AA to review policies and procedures for addressing allegations of sexual misconduct; and (5) an investigation on behalf of the Office of the Governor by former Supreme Court Justice Peter Verniero into the hiring of Alvarez.