Usachenok v. State of New Jersey

An employee of the New Jersey Department of Treasury filed a discrimination complaint with her agency employer, which initiated an investigation. Pursuant to a department policy, witnesses who were interviewed as part of the agency investigation were directed not to discuss with anyone else information related to the investigation, irrespective of the nature of the information and whether it was already public. The employee later sued the agency for discrimination and also challenged the confidentiality policy on state constitutional and statutory grounds, asserting that the policy had the effect of silencing state employees about workplace discrimination.

The intermediate appellate court assumed that the New Jersey Constitution’s protections for free expression are co-extensive with those under the federal First Amendment. And it concluded that the challenged confidentiality policy posed no constitutional problem because the policy “requests,” rather than requires, confidentiality.

The ACLU’s State Supreme Court Initiative and Women’s Rights Project, along with the ACLU of New Jersey, filed an amicus brief in the New Jersey Supreme Court supporting the employee and urging reversal.

The brief explains that the New Jersey Constitution’s unique text, structure, and history support interpreting its protections for public-employee speech more broadly than those afforded by federal constitutional law, including because—unlike the U.S. Constitution—the New Jersey Constitution expressly protects a fundamental right for public employees to organize. The brief argues that a public employee faced with a “request” for confidentiality would reasonably fear that a failure to comply could bring adverse consequences, and that such a request will inevitably chill employee speech.

Finally, the brief urges the Court to adopt a case-by-case standard for assessing the state constitutionality of confidentiality policies in internal public-employee investigations. It explains why any standard adopted by the court should recognize that employees have a constitutional interest in speaking about workplace terms and conditions, irrespective of whether those subjects can be characterized as a matter of public concern. And the brief urges the state high court to allow for consideration of multiple other factors in a state constitutional inquiry, including the interests that complainants and witnesses may have in confidentiality where an employer can show that confidentiality is necessary to prevent further harassment or retaliation.

Briefing in the case is complete and the NJ Supreme Court held argument in January 2023.