Usachenok v. State of New Jersey, Department of the Treasury, ___ N.J. ___ (2024). N.J.A.C. 4A:7-3.1(j) is a regulation intended “to protect the integrity of the investigation [of harassment or discrimination in state workplaces], minimize the risk of retaliation . . . , and protect the important privacy interests of all concerned.” Chief Justice Rabner’s opinion for a unanimous Supreme Court yesterday recognized the legitimacy and importance of those goals. But because the regulation contained language, in its final sentence, that was unconstitutionally overbroad in that it “encompasses a significant amount of protected speech,” the Court struck that sentence as violative of the New Jersey Constitution.
This was the factual background. Plaintiff, an employee of the Department of the Treasury, filed a complaint with the Departments’ Equal Employment Opportunity and Affirmative Action (“EEO/AA”) office. She alleged that her supervisor had sexually harassed her and subjected her to a hostile work environment. EEO/AA investigators met with plaintiff, directed her not to discuss the investigation with anyone else, in accordance with N.J.A.C. 4A:7-3.1(j), and warned that plaintiff could be disciplined if she violated that confidentiality directive.
Thereafter, one of the investigators gave plaintiff a statement to sign that purported to summarize her allegations. Plaintiff found that document inaccurate and wanted to change it. The investigator refused to make the changes, and plaintiff asked if she could call her husband, an attorney, for advice about what to do. Her husband advised her not to sign the document. The investigator accused plaintiff of violating the confidentiality directive and threatened her with being fired.
Ultimately, plaintiff filed this case, asserting a number of discrimination and harassment-related claims. She also challenged the validity of the confidentiality regulation. The State successfully moved to transfer to the Appellate Division the part of her case that related to the regulation, citing Rules 1:13-4 and 2:2-3(a).
The Appellate Division rebuffed plaintiff’s attack on the regulation. The Supreme Court granted plaintiff’s petition for certification and reversed, reviewing her constitutional argument de novo.
Chief Justice Rabner found the regulation unconstitutionally overbroad and violative of the New Jersey Constitution’s “broad affirmative right to free speech,” one that often exceeds the protection of the First Amendment to the United States Constitution. Relying on Supreme Court of the United States precedent, the Court examined “what the [law] covers,” not what regulators or legislators may have intended it to cover.” It was overbroad for various reasons.
The regulation “has few, if any, limits. It directs state actors to ask victims and witnesses to give up their constitutionally protected right to free speech. It commands investigators to request complete confidentiality in every investigation. And it extends to all witnesses without exception. Taken at face value, victims and witnesses are asked not to speak with their spouse or an attorney. Likewise, they may reasonably understand that they are being asked not to contact other government agencies or law enforcement officials.” Moreover, the confidentiality restriction “has no time limit. It appears to extend indefinitely, even beyond the end of an investigation.”
Chief Justice Rabner also noted that “[w]hat the regulation leaves out is also significant. It does not require that victims be told they are free to decline to follow the request. They are not told they can consult with an attorney about it. Nor are they told there will be no repercussions if they exercise their protected right to free speech.” And the fact that the regulation allows disclosure if “there is a legitimate business reason to do so” was not helpful to the State. “The regulation does not define the phrase or offer guidance about what it means, and any reasonable person would find it difficult to understand the rule’s vague language.”
Finally, the fact that the regulation was amended from a form that directed witnesses not to discuss investigations to the current form, which “requests” that witnesses not speak, did not save the day. “There is an inherent power imbalance here between the investigator who makes the request and the witness who hears it. 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. [Citations to NLRB decisions]. As a result, many employees will undoubtedly give up their right to speak freely and will remain silent.”
The Court could not use “judicial surgery” to revise the regulation into a constitutional form, as that “would extend beyond the limits of judicial surgery.” Accordingly, the Court struck the final sentence of the regulation.