In Usachenok v. State of New Jersey Department of the Treasury et al., the New Jersey Supreme Court recently evaluated a provision in a State statute requesting confidentiality in discrimination and harassment investigations with respect to State employees. The Court ruled that a provision in a State statute directing investigators to request, but not require, confidentiality was too far-reaching and prevented protected speech.
By way of background, Viktoriya Usachenok (“Usachenok” and/or the “Plaintiff”) sued the New Jersey Department of the Treasury (the “State” and/or the “Defendant”) in 2017 alleging that her then-supervisors sexually harassed her and created a hostile work environment. At the time of her lawsuit, the provision of the statute at issue — a civil service regulation governing investigations of discrimination — threatened workers with potential termination if they discussed harassment or discrimination investigations.
Thus, consistent with the text of N.J.A.C. 4A:7-3.1(j) at the time, the EEO/AA investigator directed Usachenok not to discuss the investigation with others and had her sign a form to acknowledge that directive.
The version of N.J.A.C. 4A:7-3.1(j) then in effect included the following language:
“All persons interviewed, including witnesses, shall be directed not to discuss any aspect of the investigation with others in light of the important privacy interests of all concerned. Failure to comply with this confidentiality directive may result in administrative and/or disciplinary action, up to and including termination.”
The Plaintiff maintained that the investigators became angry with her when she disclosed that she wished to talk with her husband, who is an attorney, about the investigation. Subsequently, Usachenok filed a lawsuit that, among other claims, challenged the confidentiality directive.
Subsequently, while the appeal was pending in the Appellate Division, the State’s Civil Service Commission amended the confidentiality regulation in 2020 to remove the job loss consequence and changed the wording of the law directing investigators to only “request” confidentiality from those involved in an investigation, rather than demanding it and requiring it. In their request to witnesses, investigators were also required to explain to the witness why confidentiality is important.
However, the Appellate Division denied Usachenok’s request to invalidate the provision at issue, finding a “request” for confidentiality was a useful tool to make sure an investigation was fair while also respecting the First Amendment and that “no conflict” existed between the amended confidentiality regulation and the New Jersey Law Against Discrimination (“NJLAD”).
On appeal, Usachenok argued that the Appellate Division did not analyze whether the regulation has a “chilling effect” on an employee’s right to free speech. Usachenok maintained that the regulation was unconstitutionally overbroad such that it deterred or chilled constitutionally protected speech and thus operated as an unconstitutional restraint on speech. Further, Usachenok maintained that the current revised regulation was still overbroad and vague, and that it violates the NJLAD. In addition, the Plaintiff cited Stericycle, Inc. & Teamsters Local 628, 372 N.L.R.B. No. 113 (2023), and requested that the Court adopt a balancing test to determine the validity of confidentiality regulations.
Conversely, the State argued that “because the request is truly a request, neither the State nor Federal Constitution is implicated.” The State maintained that the language of the regulation and its context make clear that no adverse consequences follow from declining the request. The State asserted that the amendment is a permissible expression of the government’s viewpoint that confidentiality will protect the integrity of an investigation and thus, there was no basis to invalidate the regulation or promulgate a new test or reach a different outcome.
In evaluating the statute at issue, the New Jersey Supreme Court noted that State Constitution provides broader protection for free expression than the Federal Constitution. The New Jersey State Constitution provides “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.” The Court recognized that in an overbreadth challenge, the proper focus belongs on “’what the [law] covers,’ not what regulators or legislators may have intended it to cover.” The Court noted that the regulation provides that “the EEO/AA Officer/investigator shall request that all persons interviewed, including witnesses, not discuss any aspect of the investigation with others.” N.J.A.C. 4A:7-3.1(j). The Court noted that the regulation has few, if any, limits as it directs state actors to ask victims and witnesses to give up their constitutionally protected right to free speech. It commands investigators to request complete confidentiality in every investigation and extends to all witnesses without exception. Taken at face value, victims and witnesses are asked not to speak with their spouse or an attorney. Likewise, they may reasonably understand that they are being asked not to contact other government agencies or law enforcement officials. The court stated that in providing such a wide-ranging request witnesses were being asked “not to speak with anyone about any aspect of any investigation into harassment or discrimination” which “encompasses a great deal of protected speech.”
Further, the Court also highlighted the fact that the request also has no time limit and “appears to extend indefinitely, even beyond the end of an investigation.” While the Court noted that there is one exception in the text of the rule such that “victims and witnesses can disclose information if ‘there is a legitimate business reason to’ do so. The regulation does not define the phrase or offer guidance about what it means, and any reasonable person would find it difficult to understand this vague language.” Notably, the Court stated that what the regulation leaves out is also significant as, “[i]t does not require that victims be told they are free to decline to follow the request. They are not told they can consult with an attorney about it. Nor are they told there will be no repercussions if they exercise their protected right to free speech.” Referencing Stericycle, the Court highlighted that, “[t]here is an inherent power imbalance here between the investigator who makes the request and the witness who hears it,” and that “victims and witnesses dependent on their employer can reasonably be concerned they may face consequences if they fail to comply.” Thus, the Court reasoned that many employees will undoubtedly give up their right to speak freely and will remain silent. As such, the Court held that the State regulation was “unconstitutionally overbroad” as “[i]ts breadth encompasses a significant amount of protected speech, and its consequences are real.” The Court reasoned that “the scope of the rule will cause countless victims and witnesses to surrender their protected right to speak freely about harassment and discrimination.”
The Court did note that they did not “question the principles the regulation was trying to foster” such as protecting the integrity of the investigation, minimizing the risk of retaliation during or after an investigation, and protecting important privacy interests of all concerned as well as protecting the integrity of an investigation by preventing witnesses from coordinating their stories and encouraging reluctant witnesses to speak. The Court maintained that it viewed these interests and concerns as legitimate and important considerations in criminal and internal affairs investigations. Thus, the Court stated that State investigators can explain the benefits of confidentiality to victims and witnesses in investigations tied to the regulation and subsequently, victims, in turn, have the right to disagree and speak freely.
Takeaways
Although the Court’s ruling was limited to interpretation of the State regulation at issue, there are some important takeaways when it comes to confidentiality instructions and investigations. In striking the provision of the statute requesting confidentiality, the Court cited to the NLRB’s decision in Stericycle and noted the inequality of bargaining power between the employer and/or investigator and the employee and/or witness and the potential for intimidation. Further, the decision affirms the principles in the recent NJLAD amendment protecting the rights of employees and witnesses to speak freely regarding actions of discrimination, harassment, and retaliation. However, the Court did note that it while it found legitimacy in the principles the regulation was attempting to address in the context of investigations (i.e., protecting the integrity of the investigation, minimizing the risk of retaliation, and protecting important privacy interests, preventing witnesses from coordinating their stories), the Court disagreed with the way in which the regulation reached this goal. Alternatively, the Court suggested discussing the benefits of confidentiality and discretion with witnesses, but declined to let the regulation stand as it outright denied individuals the right to speak freely regarding acts of discrimination, harassment, and retaliation.
As a result of this ruling, it would be prudent for all employers to revisit their confidentiality instructions with respect to investigations and potentially revise any overly restrictive policies and unnecessary restrictions on employee speech. It is also advisable to explain to employees the importance of discretion and confidentiality when it comes to workplace investigations, but maintain that there are certain carve outs and the specific areas in which employee speech will not be restricted.
For additional information on Stericylce’s impact on investigation confidentiality instructions please click here, and for training assistance please click here for information about HR on Trial, a cutting-edge Employment Investigation Workshop.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
