USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
and wiretapping laws). AI tools may also be used to help draft portions of investigation reports or execu - tive summaries, provided that a human investigator independently evaluate the facts, credibility, conclu - sions and final language of the report. As a general matter, employers should avoid the use of AI systems that conduct interviews autonomously or interact directly with witnesses in a manner that could undermine trust, accuracy or legal defensibility. The use of AI in investigations raises important data protection and risk considerations, including concerns related to implicit bias. AI systems may reflect or amplify historical biases embedded in the data used to train programs or underlying algorithms, which can create disparate impacts or distort credibility assess - ments if not carefully constrained. Employers must also take care not to input sensitive personal data – such as medical information, biometric data or legally privileged communications – into generative AI tools without appropriate safeguards. Additional risks include confidentiality breaches, data retention and secondary use by vendors, and poten - tial waiver of attorney–client privilege. Emerging state privacy laws and AI-related regulations further under - score the need for transparency, purpose limitation and meaningful human oversight. Accordingly, best practice is to treat AI as an assistive tool only. The gold standard for maintaining fairness, making reli - able credibility assessments and ensuring legal com - pliance remains using trained human investigators to make all final investigative judgments, findings and conclusions.
ally prohibit retaliation against employees who engage in protected activity, which may include reporting sus - pected violations internally or to government agen - cies or, in some cases, refusing to participate in illegal conduct. At the state level, whistle-blower protections are high - ly specific to jurisdiction and may arise from statute, common law, or both. States differ in how whistle- blowing is defined, who is protected, and what con - duct is covered. Some laws protect only reports made to government or law enforcement agencies, while others also protect internal complaints to managers or compliance personnel. Certain jurisdictions require that the employee rea - sonably believe the conduct violates a law or regu - lation; others also protect employees who refuse to engage in unlawful activity. Many states – including Illinois, which recently broadened its statutory defi - nition – extend protections beyond classic fraud or criminal conduct to include violations of laws, rules, or regulations more generally. Additional protections typically include anti-retaliation remedies such as rein - statement, back pay, compensatory damages and, in some cases, statutory penalties or attorneys’ fees. 8.2 Sexual Harassment and/or Violence In the United States, allegations concerning sexual harassment and sexual violence are subject to spe - cific and heightened legal protections at both the fed - eral and state levels. Federally, Title VII of the Civil Rights Act prohibits sexual harassment as a form of sex discrimination and protects employees and appli - cants from retaliation for reporting or participating in investigations. Sexual harassment is broadly defined to include unwelcome conduct based on sex that either becomes a condition of employment or creates a hostile work environment. Sexual violence, including sexual assault, may also implicate criminal law, federal civil rights protections and workplace safety obliga - tions. Many states have adopted broader statutory definitions than federal law, explicitly covering harass - ment based on gender identity, gender expression or sexual orientation, and extending protections beyond traditional employees.
8. Special Cases 8.1 Whistle-Blowing
Whistle-blower protections in the United States exist at both the federal and state levels, and they vary sig - nificantly by jurisdiction. Federally, multiple statutes protect individuals who report or oppose unlawful conduct, including laws enforced through agencies such as OSHA and statutes such as Sarbanes-Oxley, which cover reporting of fraud, securities violations and certain financial misconduct. These laws gener -
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