An investigator’s request for confidentiality in a discrimination or harassment probe is valid and doesn’t violate an employee’s right to free speech or the New Jersey Law Against Discrimination (NJLAD), the Appellate Division recently ruled. In the February 28 decision, the court rejected a former employee’s attempt to invalidate a state Civil Service Commission (CSC) regulation requesting confidentiality in connection with a harassment investigation.
Facts
Viktoriya Usachenok worked for the New Jersey Department of the Treasury. In May 2016, she filed an internal complaint with the department’s equal employment opportunity (EEO) and affirmative action office, alleging her supervisor sexually harassed and subjected her to a hostile work environment.
The internal investigator told Usachenok she and other interviewees were subject to a confidentiality directive under the state regulation and could face discipline if they revealed information about the investigation. She also was instructed to sign a form acknowledging the rule.
In July 2017, Usachenok filed an NJLAD lawsuit against the department, her supervisor, and the investigator. In October 2018, she filed an amended complaint challenging the confidentiality directive contained in the CSC rule. 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.
While the litigation was pending, however, the CSC revised the regulation’s language in March 2020, changing the wording to that of a “request” instead of a demand for confidentiality and removing language pertaining to discipline for noncompliance.
Despite the revision, Usachenok maintained the confidentiality request still violated the First Amendment’s free-speech right and deviated from the NJLAD’s objectives as a “retaliatory act” that punishes an alleged victim for speaking out. The CSC argued the purpose was to “maintain the integrity” of the probe and ensure the complaining party and/or any witnesses weren’t hindered during the investigative process.
Appellate Division’s Decision
The Appellate Division ruled the regulation at issue was valid, explaining 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, it wouldn’t have updated the language to make it less stringent. Instead, there was a clear intention to limit the confidentiality provision to a request, which is neither unconstitutional nor in contravention of the NJLAD because there’s no longer a threat of sanctions for speaking out. Therefore, the court dismissed the challenge to enforcing the regulation. Usachenok v. State of New Jersey Department of the Treasury, et al.
Bottom Line
Usachenok’s case underscores the importance of confidentiality with respect to investigations involving sexual harassment, hostile work environments, 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 in the probe.
The case also highlights the importance of ensuring alleged victims aren’t deterred by the threat of discipline that previously accompanied an instruction to maintain confidentiality.
For more information about the decision and how to conduct compliant workplace investigations, please contact Dina M. Mastellone, chair of Genova Burns LLC’s human resources, counseling, and compliance practice, at dmastellone@genovaburns.com.