USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
• Biometric data: Several states, including Colorado and Illinois, have adopted statutes that restrict an employer’s right to seek and/or use the biometric data of employees. • Data breach notification: State-level breach noti - fication laws impose obligations on employers to keep the personal information they collect and maintain concerning employees and applicants secure. • State privacy laws: All of the state privacy laws, other than the California Consumer Privacy Act (CCPA), generally exclude data collected by employers from their scope. The CCPA requires employers to extend the same privacy rights to the personal data of employees and applications as are extended to data collected from consumers. • CBAs: CBAs may address the collection, use and disclosure of personal data of members of the union. 7.2 Specific Rules Any investigator retained by an employer to conduct an internal investigation must comply with the restric - tions set forth in 7.1 Collecting Personal Data . Before an investigator is allowed to access confidential per - sonal information, such as health information or back - ground checks, that is protected by these laws and provisions, the employer should determine whether employees’ consent covers the access, an additional consent is necessary and accessing the personal information is justified, given the scope of the investi - gation. Also, any protected personal information col - lected by an investigator must be maintained, consist - ent with applicable privacy laws. 7.3 Access Generally, outside of an arbitration or litigation, an employer should not provide access to personal data collected in an internal investigation. Under state law, a current or former employee may have access to his or her own personnel file. However, other than a per - sonnel action form identifying any discipline issued in connection with the investigation, the investiga - tion file is unlikely to be included in a personnel file. If the investigation file is requested through a docu - ment request or subpoena in arbitration or litigation, the employer should object to production of the file
until they enter into an appropriate protective order protecting the disclosure and use of the file. 7.4 AI Employers are starting to use generative AI in con - ducting internal investigations, particularly to syn - thesise and analyse data. AI allows investigators to quickly review and synthesise data, prepare timelines, find patterns and summarise evidence. It can summa - rise witness interviews, eliminating the need to record interviews. However, given the risk of bias, hallucina - tions and admissibility problems, the results gener - ated by AI must be reviewed and confirmed by inves - tigators. Also, investigators should not use publicly accessible AI, such as the free version of ChatGPT, which could expose personal and other confidential information to the public. 8. Special Cases 8.1 Whistle-Blowing In the United States, there is a veritable alphabet soup of federal and state whistle-blower statutes. • Section 806 of the Sarbanes-Oxley Act (SOX) – protects whistle-blowers at covered employ - ers who report conduct they reasonably believe constitutes mail, wire, securities or bank fraud or a violation of any rule or regulation of the SEC. • Dodd-Frank – although the statute does not pro - vide a private right of action, whistle-blowers who report original information to the SEC or Commod - ity Futures Trading Commission (CFTC) may be eligible to participate in a reward of 10–30% of any recovery obtained by the SEC or CFTC. • False Claims Act – provides a private right of action to whistle-blowers who suffer an adverse employ - ment action for reporting non-public information about fraud against the government. • Whistle-blower claims administered by OSHA – OSHA administers a whistle-blower protection pro - gramme that protects employees from retaliation for raising or reporting concerns about workplace safety and worker protection programmes. • State whistle-blower statutes – most states have whistle-blower protections that prohibit retaliation against employees for refusing to engage in and
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