A Dollar More, Still Not a Wage?
February 24, 2014
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Bridgegate

Recently, New Jersey has been thrust into the national spotlight due to Bridgegate – the Chris Christie George Washington Bridge (“GWB”) scandal. On January 9, 2014, Christie fired Deputy Chief of Staff Bridget Anne Kelly for being “deceitful.” Christie alluded to Kelly’s deceitful failure to disclose her involvement in the GWB closure as the reason for her termination. Christie was subsequently criticized for his abrupt dismissal of Kelly without further inquiry into her motives or knowledge of the bridge closing. This brings up an interesting query: to what extent should an employer investigate employee conduct?

In the arena of harassment, hostile work environment, and discrimination, an employer may face exposure for violating relevant statutes such as Title VII of the Civil Rights Act of 1964 (“Title VII”) or the New Jersey Law Against Discrimination (“LAD”) for failing to take prompt remedial action when facing a complaint of discrimination or sexual harassment. One way an employer may protect itself is conducting a prompt and reasonable investigation and using that as what is known as an affirmative defense in the world of litigation.

What makes up a reasonable investigation is an open question. However, certainly measures such as promptly meeting with the alleged victim, questioning the victim, speaking to witnesses, questioning the wrongdoer, obtaining witness statements, and reviewing evidence (e.g. text messages, emails, etc.) are all possible avenues an employer should explore.

In an ideal situation, this would be done before the employer jumps the gun to respond to the complaint. This way, an employer can be responsive to what a deeper probe of the situation uncovers. If the employer has a handbook (and employers should have one), then it is important to review the handbook to ensure the employer is complying with any steps identified in the handbook. Departing from its own protocols could expose the employer to claims of retaliation and discrimination. Having written procedures in place sometimes avoids the employer having to walk on eggshells and “recreate the wheel” in deciding what to do next with regard to the investigation it conducts.

In the case of the GWB scandal, all publically disclosed facts indicate that Christie terminated Kelly because she lied to him. Dishonesty is a classic and appropriate reason for terminating an employee. However, the abrupt termination of Kelly, without any further investigation, even when she seems likely to possess information not yet known about the GWB scandal, seems questionable.

Christie’s seemingly abrupt actions bring into question what investigation was conducted to fully uncover what transpired. Loose ends in such a situation are rarely a good thing and most prudent employers minimize having loose ends by engaging in a vibrant investigation. Employers could be seen as engaging in retaliatory conduct when they act in a severe manner. Although it may be premature to comment on employer liability with regard to Christie’s actions, he certainly has fueled the press as more politicos come out with further information about his heavy-handed tactics. Christie raised interesting legal questions when he cited to concerns about his internal organization now conducting a further investigation into Kelly’s actions, given the fact that external agencies are conducting an investigation. Nevertheless, despite initially articulating such concerns, on January 17, 2014, the Newark Star Ledger reported that Christie hired the law firm Gibson, Dunn, & Crutcher to conduct an internal review, indicating Christie’s recognition of the importance of properly investigating the actions of his staff.

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