USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
At the state level, protections have expanded sig - nificantly in recent years. States such as California, Illinois, New Jersey, New York and Washington cover wider categories of workers, including independent contractors, interns, volunteers (in certain contexts), domestic workers, gig workers and, in some settings, students. Many jurisdictions have enacted laws modelled on violence-related protections (such as Illinois’s Vic - tims’ Economic Security and Safety Act) that pro - vide job-protected leave, accommodation rights and anti-retaliation safeguards for individuals affected by sexual or gender-based violence. Additional protec - tions commonly include mandatory harassment train - ing, extended statutes of limitations, restrictions on confidentiality provisions and NDAs, and limitations on mandatory arbitration, most notably under the fed- eral Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. Over the past year, the trend has continued towards expanded coverage, reduced procedural barriers and increased employer obliga - tions, particularly with respect to confidentiality, train - ing and access to remedies. 8.3 Other Forms of Discrimination and/ or Harassment Including Bullying and/or Mobbing Generally, American law does not recognise bullying, mobbing or “abusive conduct” as stand-alone unlaw - ful conduct in the private sector unless it is tied to a protected characteristic. At the federal level and in most states, harassment or bullying becomes legally actionable only when it rises to the level of a hostile work environment based on a protected trait such as sex, race, age, disability, religion, or other character - istics protected by statute. Accordingly, generalised bullying, incivility and unfair treatment, while often inappropriate and harmful, do not typically give rise to liability in the absence of a discriminatory nexus. That said, a limited number of states have enacted laws or regulations that reference “abusive conduct” or workplace bullying, primarily in the context of train - ing or policy requirements rather than substantive pro - hibitions. For example, California requires employers to include training on “abusive conduct” as part of mandated harassment training, and states such as
Connecticut and Washington have adopted similar concepts in guidance or policy frameworks. These laws generally do not create a private right of action for employees. Other jurisdictions, including Illinois, Nevada, New Hampshire, Tennessee and Utah, have adopted anti-bullying or “healthy workplace” provi - sions largely applicable to public-sector employers, often requiring agencies to adopt policies or even pro - viding immunity to employers if certain model policies are shown to have been implemented. Municipalities (such as Chicago) may have their own requirements for private employers to provide anti-bullying-related training to employees. Over the past year, the trend has continued to favour preventive measures such as training, policies and awareness rather than expand - ing legal liability for bullying as an independent cause of action, particularly in the private employment con - text. 8.4 Criminal Cases When an allegation raised in an internal HR investiga - tion may also constitute criminal conduct, employ - ers should follow additional procedural safeguards. As an initial step, employers should conduct a risk assessment to address immediate employee safety concerns and determine whether interim measures, such as administrative leave or workplace restrictions, are appropriate. The potential criminal nature of an allegation does not eliminate the employer’s obligation to conduct a work - place investigation, particularly when the conduct may violate company policy. However, employers should co-ordinate closely with counsel to determine the appropriate scope and timing of the internal investi - gation, to assess whether and when communication with law enforcement or other authorities is required, and to address whether an employer’s investigation is subject to relevant legal privileges and thus pro - tected from disclosure to third parties, including law enforcement. Employers should also be mindful that internal inves - tigations may generate evidence relevant to a crimi - nal proceeding, which can affect witness participa - tion, document preservation and interview strategy. In many cases, employers should avoid interfering with or undermining government investigations and may
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