In Viktoriya Usachenok v. State of New Jersey, Department of the Treasury,(A-40-22) (086861), decided May 6, 2024, the New Jersey Supreme Court tackled the issue of the constitutionality of a regulation within the New Jersey Administrative Code (N.J.A.C.) that pertains to confidentiality in harassment and discrimination investigations within State workplaces. Specifically, the regulation in question, N.J.A.C. 4A:7-3.1(j), 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 could result in disciplinary action, including termination of employment.

The plaintiff, Viktoriya Usachenok, who filed an internal complaint alleging sexual harassment by her supervisor within the Department of Treasury, challenged the constitutionality of this regulation. Usachenok claimed that the regulation violated 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.

The court ultimately found the regulation to be overbroad under the State Constitution. While acknowledging the legitimate interests the regulation sought to protect—such as the integrity of investigations and the prevention of retaliation—the court held that the regulation’s sweeping confidentiality requirement went too far and infringed upon constitutionally protected speech. The court noted that the regulation lacked clarity regarding what constituted a “legitimate business reason” for disclosure and failed to inform individuals that they were free to disregard the State’s request for confidentiality. Consequently, the court reversed the judgment of the lower Appellate Division and struck down the relevant part of the regulation.

In summary, the court’s decision invalidated the regulation’s mandate for absolute confidentiality during harassment and discrimination investigations within State workplaces, citing its overbreadth and infringement on constitutionally protected speech rights.

This decision is groundbreaking and important for several reasons:

  1. Clarification of Free Speech Rights: It provides clarification on the extent of free speech rights for employees in government workplaces, particularly in the context of harassment and discrimination investigations. By ruling that the regulation was overbroad and infringed upon constitutionally protected speech rights, the court reaffirmed the significance of free expression, even in regulated environments.
  2. Balancing Investigative Integrity and Individual Rights: The decision strikes a balance between the legitimate interests of employers in maintaining the integrity of investigations and the rights of employees to speak out about harassment and discrimination. It underscores the importance of ensuring that investigation procedures respect individuals’ rights while effectively fulfilling their intended purpose.
  3. Implications for Workplace Policies: This ruling likely prompts government employers to reassess their workplace policies and investigation procedures. They may need to revise their confidentiality directives to ensure they are in line with constitutional standards, providing clearer guidance to employees while still safeguarding the integrity of investigations.
  4. Empowerment of Employees: By invalidating the overly restrictive confidentiality directive, the decision empowers employees to speak up about workplace misconduct without fear of reprisal or undue restrictions on their speech. This could contribute to a more open and transparent work environment conducive to addressing and preventing harassment and discrimination.
  5. Legal Precedent: As a judicial precedent, this decision sets a benchmark for future cases involving similar issues in New Jersey and potentially in other jurisdictions. It establishes a framework for evaluating the constitutionality of workplace investigation regulations, guiding both employers and employees in navigating their rights and responsibilities.

For employers and employees who work for the government, this decision underscores the importance of upholding constitutional rights while maintaining effective workplace procedures. Employers may need to review and potentially revise their policies to ensure compliance with the court’s ruling, while employees can feel more confident in exercising their right to speak out against harassment and discrimination without facing overly restrictive confidentiality constraints. Overall, the decision promotes a more balanced and equitable approach to workplace investigations within government agencies.