{"id":138693,"date":"2023-11-17T15:56:09","date_gmt":"2023-11-17T20:56:09","guid":{"rendered":"https:\/\/www.aclu.org\/?post_type=case&#038;p=138693"},"modified":"2024-05-22T16:29:44","modified_gmt":"2024-05-22T20:29:44","slug":"usachenok-v-state-of-new-jersey","status":"publish","type":"case","link":"https:\/\/www.aclu.org\/cases\/usachenok-v-state-of-new-jersey","title":{"rendered":"Usachenok v. State of New Jersey"},"menu_order":0,"template":"","supreme_court_term":[],"court":[],"class_list":["post-138693","case","type-case","status-publish","hentry"],"acf":{"case_number":"NO. 086861 ","featured_image":"","issues":[46811,46479],"court_type":"state_supreme_court","case_type":false,"supreme_court_term":null,"state_territory_affiliate":[362],"status":"ongoing","date_updated":"20231117","whats_at_stake":"The New Jersey Department of Treasury maintains a policy that requires employers investigating workplace discrimination to \u201crequest\u201d confidentiality from all witnesses with respect to any information related to the investigation. This case involves whether a confidentiality policy of this kind violates the free speech rights under the New Jersey Constitution of state employees who are witnesses, and whether those rights are broader than the U.S. Constitution\u2019s First Amendment free speech right. The ACLU\u2019s State Supreme Court Initiative and Women\u2019s Rights Project, along with the ACLU of New Jersey, filed an amicus brief in the New Jersey Supreme Court, urging that court to revive a government employee\u2019s speech claim challenging the confidentiality policy and to interpret the New Jersey Constitution\u2019s speech protection more broadly than federal constitutional law. In April 2024, the New Jersey Supreme Court ruled in our favor and reversed the judgment of the Appellate Division.","call_to_action":null,"summary":"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.\r\n\r\nThe intermediate appellate court assumed that the New Jersey Constitution\u2019s 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 \u201crequests,\u201d rather than requires, confidentiality.\r\n\r\nThe ACLU\u2019s State Supreme Court Initiative and Women\u2019s 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.\r\n\r\nThe brief explains that the New Jersey Constitution\u2019s unique text, structure, and history support interpreting its protections for public-employee speech more broadly than those afforded by federal constitutional law, including because\u2014unlike the U.S. Constitution\u2014the New Jersey Constitution expressly protects a fundamental right for public employees to organize. The brief argues that a public employee faced with a \u201crequest\u201d for confidentiality would reasonably fear that a failure to comply could bring adverse consequences, and that such a request will inevitably chill employee speech.\r\n\r\nFinally, 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.\r\n\r\nBriefing in the case is complete and the NJ Supreme Court held argument in January 2023.","case_decision":"","featured_case":false,"legal_project":"","date_filed":null,"administration_challenged":"","constitutional_principle":["Discrimination","Privacy"],"drupal_node_id":"","legal_documents":[{"court":null,"documents":[{"document_options":"document","document":157983,"title":"Decision","subtitle":"","date_filed":null,"drupal_node_id":"","slug":"","child_documents":null},{"document_options":"document","document":138804,"title":"Amicus Brief","subtitle":"","date_filed":"20230724","drupal_node_id":"","slug":"","child_documents":null}]}],"plaintiffs":"","co-counsel":"","press_releases_related_to_cases":"","related_content_cases":"","related_content_documents":"","related_content_publications":""},"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v23.5 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>Usachenok v. State of New Jersey | American Civil Liberties Union<\/title>\n<meta name=\"description\" content=\"The New Jersey Department of Treasury maintains a policy that requires employers investigating workplace discrimination to \u201crequest\u201d confidentiality from all witnesses with respect to any information related to the investigation. This case involves whether a confidentiality policy of this kind violates the free speech rights under the New Jersey Constitution of state employees who are witnesses, and whether those rights are broader than the U.S. Constitution\u2019s First Amendment free speech right. The ACLU\u2019s State Supreme Court Initiative and Women\u2019s Rights Project, along with the ACLU of New Jersey, filed an amicus brief in the New Jersey Supreme Court, urging that court to revive a government employee\u2019s speech claim challenging the confidentiality policy and to interpret the New Jersey Constitution\u2019s speech protection more broadly than federal constitutional law. In April 2024, the New Jersey Supreme Court ruled in our favor and reversed the judgment of the Appellate Division.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.aclu.org\/cases\/usachenok-v-state-of-new-jersey\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Usachenok v. State of New Jersey | American Civil Liberties Union\" \/>\n<meta property=\"og:description\" content=\"The New Jersey Department of Treasury maintains a policy that requires employers investigating workplace discrimination to \u201crequest\u201d confidentiality from all witnesses with respect to any information related to the investigation. This case involves whether a confidentiality policy of this kind violates the free speech rights under the New Jersey Constitution of state employees who are witnesses, and whether those rights are broader than the U.S. Constitution\u2019s First Amendment free speech right. The ACLU\u2019s State Supreme Court Initiative and Women\u2019s Rights Project, along with the ACLU of New Jersey, filed an amicus brief in the New Jersey Supreme Court, urging that court to revive a government employee\u2019s speech claim challenging the confidentiality policy and to interpret the New Jersey Constitution\u2019s speech protection more broadly than federal constitutional law. In April 2024, the New Jersey Supreme Court ruled in our favor and reversed the judgment of the Appellate Division.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.aclu.org\/cases\/usachenok-v-state-of-new-jersey\" \/>\n<meta property=\"og:site_name\" content=\"American Civil Liberties Union\" \/>\n<meta property=\"article:modified_time\" content=\"2024-05-22T20:29:44+00:00\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:site\" content=\"@aclu\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.aclu.org\/cases\/usachenok-v-state-of-new-jersey\",\"url\":\"https:\/\/www.aclu.org\/cases\/usachenok-v-state-of-new-jersey\",\"name\":\"Usachenok v. 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The ACLU\u2019s State Supreme Court Initiative and Women\u2019s Rights Project, along with the ACLU of New Jersey, filed an amicus brief in the New Jersey Supreme Court, urging that court to revive a government employee\u2019s speech claim challenging the confidentiality policy and to interpret the New Jersey Constitution\u2019s speech protection more broadly than federal constitutional law. In April 2024, the New Jersey Supreme Court ruled in our favor and reversed the judgment of the Appellate Division.\",\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.aclu.org\/cases\/usachenok-v-state-of-new-jersey\"]}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.aclu.org\/#website\",\"url\":\"https:\/\/www.aclu.org\/\",\"name\":\"American Civil Liberties Union\",\"description\":\"The ACLU dares to create a more perfect union \u2014 beyond one person, party, or side. 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