NJ Appellate Division Upholds Requests, Not Commands, By Employers to Maintain Confidentiality in Employment Investigations

On February 28, 2022, the New Jersey Appellate Division ruled that a request for confidentiality by an investigator in connection with a discrimination or harassment investigation is valid and does not violate an employee’s right of free speech or the New Jersey Law Against Discrimination (NJLAD). In Usachenok v. State of New Jersey Department of the Treasury, et al., the Appellate Division denied an attempt made by a former employee to invalidate a regulation by the State's Civil Service Commission requesting confidentiality in connection with a harassment investigation.

Facts

Viktoriya Usachenok was employed by the State of New Jersey’s Department of Treasury. In May 2016, Usachenok filed an internal complaint with the Department’s Equal Employment Opportunity and Affirmative Action Office, alleging her supervisor sexually harassed her and subjected her to a hostile work environment. Usachenok was told by the investigator that she and others interviewed were subject to a confidentiality directive pursuant to the state regulation, and could face discipline if they revealed information about the investigation. Usachenok also was instructed to execute a form acknowledging the rule.

In July 2017, Usachenok filed a lawsuit under the NJLAD against the Department, her supervisor and the investigator. In October 2018, Usachenok filed an amended complaint challenging the confidentiality directive contained in the Civil Service Commission (CSC). At the time, the regulation, New Jersey Administrative Code 4A:7-3.1(j), stated in part, “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 of employment.”

During the pendency of the litigation, however, the CSC revised the language of the regulation in March 2020, changing the wording to that of a “request” instead of a demand for confidentiality and removing language pertaining to discipline for non-compliance.

Despite the revision, Usachenok maintained that the confidentiality request still violated the First Amendment’s right to free speech and deviated from the objectives of the NJLAD, as a “retaliatory act” that punishes an alleged victim for speaking out. The CSC argued that the purpose was to “maintain the integrity of the investigation” and to ensure that complainant and/or witnesses were not hindered during the investigative process.

Appellate Division’s Decision

The Appellate Division ruled that the regulation at issue was valid, explaining that the use of the word “request” successfully ensured the privacy interests of Usachenok, her supervisor, and other witnesses who were interviewed. Thus, there was no requirement for confidentiality that would impermissibly restrict free speech. The Appellate Division reasoned that if the CSC intended for confidentiality to be a strict requirement, they would not have updated the language to make it less stringent. Instead, there is a clear intention to limit the confidentiality provision to a request, which is neither unconstitutional nor in contravention of the NJLAD, as there is no longer a threat of sanctions for speaking out. Therefore, the Appellate Division dismissed this challenge to enforcement of the regulation.

Bottom Line

This case underscores the importance of confidentiality with respect to investigations involving sexual harassment, hostile work environment and other employment related complaints, while simultaneously establishing that confidentiality may only be requested - not commanded - and a breach of confidentiality cannot result in discipline. A request for confidentiality can protect the interests of the accuser, those accused of misdeeds, and witnesses involved, while also respecting the free-speech rights of all participants of the investigation. The case also underscores the importance of ensuring that alleged victims are not deterred by the threat of discipline that previously accompanied an instruction to maintain confidentiality.

For more information regarding this decision and information on how to conduct compliant workplace investigations, please contact Partner and Human Resources, Counseling & Compliance Law specialist Dina M. Mastellone, Esq. via email here or call 973.533.0777.