Appellate Division upholds employer requests, not commands, to keep probes confidential

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: