By: Ty Hyderally, Esq., Francine Foner, Esq., Maya Patel

In a pivotal decision, the New Jersey Supreme Court has struck down part of a regulation that imposed confidentiality on harassment and discrimination investigations in state workplaces. Viktoria Usachenok v. State of New Jersey, Department of the Treasury, (A-40-22)(086881). This ruling reaffirms the rights of employees to speak freely about their experiences of harassment and discrimination.

In May 2016, Viktoriya Usachenok filed an internal complaint with the Department of Treasury, alleging that her supervisor had sexually harassed her and created a hostile work environment. During the investigation, the EEO/AA investigator instructed Usachenok not to discuss any aspect of the investigation with anyone, a directive that was formalized in a signed acknowledgment. This directive was based on the then-effective regulation N.J.A.C. 4A:7-3.1(j), which mandated that all persons interviewed during such investigations, including witnesses and victims, refrain from discussing any aspect of the investigation with others unless there was a legitimate business reason to do so. Failure to comply with the confidentiality rule could result in disciplinary action, including termination of employment.

When Usachenok consulted her attorney husband about signing a document related to the investigation, the investigator accused her of violating the confidentiality directive and threatened her with potential termination. Usachenok subsequently challenged the directive, arguing that it infringed upon her constitutional right to free speech under the New Jersey State Constitution, which provides broader protections than those afforded by the First Amendment of the U.S. Constitution. Usachenok also contended that the Appellate Court had failed to analyze whether the regulation has a chilling effect upon employees’ right to free speech, was an unconstitutional restraint on free speech, and was overbroad, vague, and violated the New Jersey Law Against Discrimination. Usachenok further requested that the New Jersey Supreme Court use a balancing test in determining the validity of law.

The New Jersey Supreme Court, led by Chief Justice Rabner, delivered a unanimous opinion striking down the overbroad regulation. The Court emphasized that the New Jersey Constitution provides broad protections for free speech, extending to victims of harassment and discrimination. While the regulation aimed to protect investigation integrity, minimize retaliation risks, and safeguard privacy, it was deemed overly broad and infringing on constitutionally protected speech.

The Court identified several issues with the confidentiality directive: The regulation’s language was expansive, covering a vast amount of protected speech without clear limitations or time constraints; failed to clarify what constituted a “legitimate business reason” for disclosure and did not inform employees of their right to refuse the request or seek legal counsel without repercussions; implicitly pressured employees due to the power imbalance between investigators and employee; and effectively muzzled employees, preventing them from discussing critical case details with their attorneys or family members.

In addition, the Court referenced the overbreadth doctrine, which assesses the extent to which a law deters legitimate expression and found that the regulation failed this test by encompassing a wide range of protected speech without necessary limitations or exceptions. Under this doctrine, the focus is not what legislators intended to cover but rather what the law covers. As there were no clear limits to the regulation, the Court found that there was clear power imbalance, as the request to not speak about investigations “exacerbates its potential to chill protected speech.”

The New Jersey Supreme Court’s decision provides critical insights into the scope of free speech rights for government employees, particularly in the context of harassment and discrimination investigations. By deeming the regulation overbroad and infringing on protected speech rights, the court underscored the essential role of free expression, even within regulated environments. This ruling will likely lead government employers to reevaluate their workplace policies and investigation procedures. They may need to update their confidentiality directives to align with constitutional standards, offering clearer guidance to employees while preserving the integrity of investigations.

The decision also empowers employees by striking down the overly restrictive confidentiality rule, allowing them to discuss workplace misconduct without fear of undue restrictions or reprisals. This change can foster a more transparent and open work environment, conducive to addressing and preventing harassment and discrimination. Moreover, as a legal precedent, it sets a significant benchmark for future cases involving similar issues in New Jersey and possibly other jurisdictions. It establishes a framework for assessing the constitutionality of workplace investigation regulations, providing guidance for both employees and employers in understanding their rights.

En nuestra firma hablamos español. This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.