In Usachenok v. State of New Jersey Department of the Treasury, (A-40-22/086861) (Decided May 6, 2024), the Supreme Court of New Jersey struck down a regulation requiring State investigators to “request” that anyone interviewed “not discuss any aspect of the investigation with others” when investigating harassment and discrimination investigations in State workplaces. According to the Court, the rule is overbroad under the New Jersey Constitution.
“The scope of the rule will cause countless victims and witnesses to surrender their protected right to speak freely about harassment and discrimination,” Chief Justice Stuart Rabner wrote. “Although we acknowledge the state’s good-faith representations that the regulation can be narrowed, we cannot rely on them to uphold the rule.”
Facts of Usachenok v. State of New Jersey Department of the Treasury
In May 2016, plaintiff Viktoriya Usachenok filed an internal complaint with the Department of Treasury claiming that her supervisor sexually harassed her and subjected her to a hostile work environment. 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. After Usachenok asked her husband, an attorney, about whether to sign a particular document related to the investigation, the investigator accused Usachenok of violating the confidentiality directive and threatened she could be fired. Usachenok filed a complaint that, among other claims, challenged the confidentiality 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.”
While this appeal was pending in the Appellate Division, the Civil Service Commission amended the regulation. As amended, the relevant portion of N.J.A.C. 4A:7-3.1(j) provides that “the EEO/AA Officer/investigator shall request that all persons interviewed, including witnesses, not discuss any aspect of the investigation with others, unless there is a legitimate business reason to disclose such information.”
The Appellate Division rejected Usachenok’s constitutional challenge to the current regulation, focusing on the change from a directive to a permissive “request” through the amendment.
NJ Supreme Court’s Decision in Usachenok v. State of New Jersey Department of the Treasury
The New Jersey Supreme Court reversed, striking paragraph (j) from the regulation. “Although the regulation seeks to advance legitimate interests…, it reaches too far in trying to achieve those aims and chills constitutionally protected speech,” Chief Justice Stuart Rabner wrote. “We therefore hold that the rule is overbroad under the State Constitution.”
The New Jersey Supreme Court first examined the text of the regulation to construe its scope, noting that the critical language in N.J.A.C. 4A:7-3.1(j) has few, if any, limits. “In short, the request is as simple as it is wide-ranging: not to speak with anyone about any aspect of any investigation into harassment or discrimination,” Chief Justice Rabner wrote. “That request encompasses a great deal of protected speech.”
As the New Jersey Supreme Court highlighted, investigators must ask all victims and witnesses who are interviewed not to speak to others, including a spouse, an attorney, or the public. Additionally, the regulation has no time limit; the request extends indefinitely, even after an investigation has ended.
The Court acknowledged that the rule includes an exception stating that victims and witnesses can disclose information if “there is a legitimate business reason to” do so. However, as Chief Justice Rabner noted, the regulation does not offer guidance about what that means and does not require that victims be told they are free to decline to follow the request, that they can consult with an attorney about it, or that there will be no repercussions if they exercise their protected right to free speech.
“There is an inherent power imbalance here between the investigator who makes the request and the witness who hears it,” Rabner stated. “Investigators speak on behalf of an agency of the state. Beyond that, victims and witnesses dependent on their employer can reasonably be concerned they may face consequences if they fail to comply.”
The New Jersey Supreme Court noted that counsel for the Attorney General proposed revisions that would help address the regulation’s broad scope. “Revisions to the regulation of that type would help address its broad sweep. But we cannot expand and rewrite the final sentence of the regulation to render it constitutional,” Chief Justice Rabner explained.
Finally, the Chief Justice emphasized that the Court did not question the principles the regulation tries to foster. “To be clear, the challenge here is not over the State’s legitimate concerns. It is about how the current regulation sought to promote them,” Rabner wrote.