Should Alvarez have been hired in first place? Employment lawyer explains how N.J. could have been liable if it didn’t hire him because of assault allegation

Trenton, New Jersey - State Capitol Building

If a selected “at-will” employee is accused of sexual assault and a law enforcement body investigates but decides to not pursue charges, should that employee still be hired?

While a legislative oversight committee investigates how Gov. Phil Murphy’s administration handled an allegation of sexual assault against Al Alvarez, former chief of staff in the Schools Development Authority, some are asking this question:

Why was Alvarez hired in the first place?

The allegation, after all, was first made before Alvarez was given a full-time job.

What is playing out in Trenton is no different than what has been happening behind closed doors in the private sector as the rise of the #MeToo movement has brought more accusations to the forefront.

Human resources and workplace lawyers said there are no easy answers.

One employment lawyer said the law in the state of New Jersey could have sided with Alvarez if he was denied a job he was promised.

“When someone is accused of sexual assault and there is found not to be merit to the allegation, you could potentially face a defamation claim, a potential gender discrimination claim and possibly even — depending on the facts — a whistleblower claim,” Ty Hyderally, an employment lawyer in Montclair, said.

Ravi Sattiraju, a Princeton-based employment lawyer, had a different take.

Sattiraju said that, even if the individuals were at an after-hours event, because the gathering included coworkers — including volunteers or unpaid workers — the employer, or the campaign in this case, could be liable.

The courts, he said, would recognize Brennan’s rights in this case.

But what about Alvarez being hired?

“There’s a higher threshold to prove … in a criminal investigation,” he said. “But if they have word that someone has misbehaved in the workplace, the institution has an obligation to investigate that and see whether or not it’s accurate or not.”

Just because the prosecutor’s office didn’t go forward, it doesn’t dictate the direction the people in authority should take, Sattiraju said.

In fact, as they are doing now, the administration has an obligation to launch its own investigation, and people in authority should have shared the relevant information, he said.

Dealing with Alvarez after the allegation is problematic, too.

Some have suggested he should have been fired immediately — which, again, could have brought about a defamation claim — or offered a separation agreement. One source, who requested anonymity due to the sensitive nature of the situation, questioned how that would have played out in the Alvarez case.

“Can you imagine if Al had gotten a separation agreement and a salary for one month?” the source asked.

The timeline around the allegation and Alvarez’s hiring became clearer Tuesday.

Alvarez was accused of sexual assault during a non-campaign event in April 2017, by then-volunteer Katie Brennan. Alvarez served on Murphy’s campaign at the time.

Brennan testified in front of the joint legislative committee on Dec. 4 that she followed up with a police report in Jersey City, a rape kit at Jersey City Medical Center and filed charges with the Hudson County Prosecutor’s Office.

The prosecutor’s office declined to pursue charges in December of that year, and Alvarez went on to become the chief of staff at the SDA.

According to testimony Tuesday, Alvarez got the position when transition chief Jose Lozano, who now serves as CEO of Choose New Jersey, texted then-SDA CEO Charles McKenna that Alvarez would be joining as chief of staff.

McKenna met Alvarez for a courtesy interview and then agreed to hire him, he said Tuesday.

This all occurred even though key individuals, including Murphy’s chief of staff, Pete Cammarano, and chief counsel, Matthew Platkin, were made aware that Alvarez was accused of sexual assault.

According to testimony Tuesday from Cammarano, who is stepping down from his post soon, the decision to keep Alvarez in the administration partly came from the lack of charges from Hudson County.

Cammarano also said the administration did take an extra step.

“The transition’s outside legal counsel said he would perform a special background check on Mr. Alvarez to see if anything came up,” Cammarano said. “The background check came back clean.

“Counsel told us that we should take action to ensure that Mr. Alvarez was not in a position to retaliate against the alleged victim by limiting his hiring responsibilities and his ability to reject any resume submitted to the transition by anyone who could be the alleged victim.”

This apparently was put in place.

Another source, who also requested anonymity, told ROI-NJ that, even though Alvarez’s title was deputy director of personnel, he wasn’t in charge of hiring, he was simply in charge of filtering qualified applicants’ resumes for each agency, which were collected and sent to the respective agency heads.

Whether or not Alvarez was informed of the change to his role remained unclear Tuesday.

That, at least, was a good move, according to one expert interviewed after the hearing.

Karen Kessler, a crisis management expert and CEO of Evergreen Partners, told ROI-NJ there could always be a fear of legal retaliation from whomever is accused.

“We always advise our clients that it is best to get ahead of the story and terminate prior to media coverage if it is warranted,” she said. “This is not always possible and, depending on the accusation, not always appropriate, because some of those terminated threaten to sue and/or to ‘go public’ if they think they are wrongly terminated.”

The idea to shift Alverez’s responsibilities came from an internal email at Genova Burns, in December, in which Murphy’s transition counsel, Rajiv Parikh, sought advice from his colleagues in the law firm about what to do.

Three suggestions were sent from Parikh in the email.

The first was to discuss the situation privately with “Alex,” referring to Alvarez, advising that he must recuse himself from any matters involving “her,” referring to Brennan; the second was to keep Alvarez in the dark, but monitor the hiring process closely for departments in which “she”  applies for a job; and the third was to do nothing, but prepare to react to anything that comes out publicly.

Parikh is a new name from Tuesday’s testimony that has piqued the interest of the legislative committee, and it indicated he could be called to testify.

“That’s one that I would like to see come,” Assemblywoman Nancy Munoz (R-Summit) said.

After Alvarez was hired, Brennan came forward and set a series of events into motion that lead to Alvarez being asked to leave in March this year — fewer than three months after he was hired by SDA.

But he was not fired.

Why no one took the step to fire Alvarez at any point remains unanswered.

McKenna said he asked Platkin if he should fire Alvarez, but Platkin said no.

McKenna said he was never told the reason Alvarez was asked to leave, but in hindsight wished he had known.

“I assumed they were taking action proportional to what they knew to be the facts,” he said.

If he had known, McKenna said, “I would have … had a serious discussion about whether (Alvarez) should be brought on in the first place, or whether they should have conducted an investigation on whether or not these allegations were true.”

What happened between March, when Alvarez was first told to leave, and October, when Alvarez resigned just before Brennan’s story broke in the Wall Street Journal, remains unclear.

“I think it shows that there’s obviously inconsistencies in the sense of when someone is asked to remove themselves from employment and setting a timeline,” Assemblywoman Eliana Pintor Marin (D-Newark) said.

Ben Dworkin, director of the Rowan Institute for Public Policy & Citizenship, said Alvarez’s hiring was not that unusual — as political hires go — and that it could have taken him significant time to find a job.

“Politics is a networking business and, therefore, one’s personal connections almost always tend to help,” Dworkin told ROI-NJ in an emailed interview. “Frequently, the challenge for many government employees looking to join the public sector is that their professional networks are largely political and not really in the private sector where they want to go. The ability to use one’s connections to deliver clients to a new employer is especially valued. The ability to find a job when leaving government can depend a lot on what the person is ready to accept.”

The next hearing, which will continue with Cammarano’s testimony, is scheduled for Jan. 8.