GINA: Put the DNA on the ground, Step Away and No one will get hurt

GINA, or the Genetic Information Nondiscrimination Act was passed in 2008. It passed unnoticed by many companies because much of the emphasis was originally put on Title I of the Act which set down the standards for use of genetic information by health insurance companies. So most companies, particulary small ones, did not think it applied to them. Unfortunately, that is not the case.

Title II of the Act specifically addresses the use of genetic information, or the prohibitions against that use, for employers. And since this is administered and enforced by the Equal Employment Opportunity Commission it means that employers with as few as 15 employees must comply. Now you may think that just because you have only 15 employees you will never encounter genetic information. You would be wrong. Section 202 of the law specifically points out the unlawful employment practices prohibited. These include:

(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or

(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

It also prohibits the following "...an employer (may not) request, require, or purchase genetic information with respect to an employee or a family member of the employee..."

And you may think "I would never do that. I would have no reason to do that." But the law also covers you inadvertently acquiring that information through activities such as a medical questionnaire, a heath fair screening, or even casual converstation. The law does give you an out if you acquire information inadvertently as long as you do not use that information in violation of the law. "In the case of information to which any of paragraphs (1) through (6) of subsection (b) applies, such information may not be used in violation of paragraph (1) or (2) of subsection (a) or treated or disclosed in a manner that violates section 206." In other words, if  you use the inadvertent information to make employment decisions you violate the law regardless of how you acquired the information.


When the law was originally written there was some confusion on the actual interpretation of some of the wording or intent of some of the language. On November 9, 2010 the EEOC issued final rules on GINA. So it is set in stone now, barring judicial interpretations as court cases arise.

There are several things that you need to do as an employer.

1. Genetic information needs to be mentioned in your Non-discrimination policy.
2. You need to have the new EEOC poster that reflects that language.
3. Any acquired information needs to be kept in the employees confidential file where you keep ADA informational. (You don't have a confidential medical file you say? Oops.. better correct that. Hire a good consultant to help you. Hint-hint)
4. Discuss with and train your supervisors on how to deal with information they are told or overhear.
5. Make sure that acquired information NEVER enters into your employment decisions.

You can find the full text of the law by clicking on this link. The Genetic Information Nondiscrimination Act of 2008 Read Section 202 if you read nothing else.
You can find the Final Rules at this link. Regulations Under the Genetic Information Nondiscrimination Act of 2008; Final Rule This is long but you can look through for terms and see how they resolved some of the confusion.



I have also written previously about GINA, take a look if you need further information.
GINA: Not Just About the Genetics
OOPS Can't Ask That: The Impact of GINA at Work
GINA: "She" Is Moving in On November 21 and NEVER Going Away
GINA is Here: Complying with "Her" Regulations
 
 
 

Credit Checks: Yes or No?

As reported by the Wall Street Journal and by SHRM the EEOC has been holding hearings whether the use of credit checks on potential employees should be utilized by a company in making a hiring decision. Representatives from SHRM (tesitmony can be found here), the US Chamber of Commerce, the law firm of SeyfarthShaw, LLP, and others testified on behalf of continuing the practice of using credit checks. Advocates for low income individuals testified against their use. The major point appears to be that poor credit potentially could be a bar to gaining employment in these tougher economic times. I have had some clients and students inquire about the use of credit checks as well. So I thought I would weigh in on the subject for my readers.

Credit checks usage as a background check, and indeed all background checks, are treated the same as consumer credit checks and are governed by the Fair Credit Reporting Act. The FCRA requires that you have an applicants permission to check their background. It also requires that if you make some adverse determination on the basis of that background check that you inform them, give them an opportunity to respond and to potentially correct the information if it is indeed incorrect. You can find the entire FCRA here. (Note it is an 86-page document.) The law does hold a company to the standard of insuring that their practices do not result in disparate impact, recognizing that minorities have historically have poorer credit records than do non-minorities, in some cases due to discrimination.

So the major complaint about the use of credit history as a hiring tool is that some companies use it across the board for all applicants as an indicator of "character" and "personal responsibililty." They deem this as "fitness for the job." In my opinion this is a poor decision making process and a misuse of the law. Character and personal responsibility are better left to the interview. Using the credit report is the lazy way out. Of course if they screw this up, they may be conducting illegal interviews as well.

What is the proper use of the credit check as a decision making tool? Determining if the position requires the employee to handle company money, company credit, customer money or customer credit, such as access to credit cards. Putting people in these positions without a credit check could expose the company to liability, either due to internal theft or to theft of consumer information. Let me give an example. I once ran across a company that would do a credit check on an employee on a whim. Poor decision making. Unfortunately for them, the one person they did not credit check was the person they hired to be their accountant. She had a good resume and she interviewed very well. She came across as trustworthy. So imagine their surprise when auditors discovered that she had embezzled over $60,000. If they had check her credit they would have discovered that she was $120,000 in debt. That might not have altered their decision to hire her, after all she was a good accountant. But it might have put them on alert to more closely manage her work. Either way money, time, effort, and heartache might have been prevented.

So my answer to the question in the title is YES. I would use, and have used, credit checks in making determinations on candidates for positions in which the future employee would be exposed to things that might damage my company or a client of the company. If you are running a piece of machinery, interviewing candidates, emptying the trash, filing reports, sewing clothes, cleaning the carpet I don't care what your credit history has been. I just require that you come to work and do a good job. If your credit history gets your car repossed then it might become an issue, but only if you can no longer get to work.

Will companies continue to use the credit check incorrectly? I am pretty sure the answer to that is YES. These are probably also the same companies that violate the FLSA, the Civil Rights Act, FMLA, the ADA and most of the other laws. Does that mean all of those have to be changed? Nope. Just need to penalize companies that violate them.

There is no one-to-one connection between your character and your credit... not today anyway.

So what do you do? Are you a YES or a NO?

You can find a differing opinion from Lance Haun here.

Just In Case You Didn't the Feds Were Controlling Enough In HR

Before I start on my "rant" for the day I want to thank Stephanie R. Thomas for the post that is the inspiration for my post today. Her post, entitled The Men from NEPET Are Coming , appeared on the Compensation Cafe on August 20, 2010. In that post she pointed out a report from the government. This report, entitled National Equal Pay Enforcement Task Force (Stephanie's NEPET), is a document from the White House that discusses the cross agency efforts to get the Paycheck Fairness Act passed by increasing the amount of scrutiny paid to, and information gathered from, businesses in the United States. My post will summarize what I consider to be the "high points" (or low  points depending on your point of view) of this report. For a complete understanding of the what you will be facing you need to read the report and Stephanie's post in addition to what you are reading here. Just follow the links above.

In his campaign to be elected president and in the State of the Union address, Barak Obama made it clear that one of his goals was to erase pay inequities based on gender. Getting the Lilly Ledbetter Act passed was considered to be the first step. The report points out the next step "To implement President Obama’s pledge in the State of the Union address to crack down on violations of equal pay laws, the Administration has created the National Equal Pay Enforcement Task Force, bringing together the Equal Employment Opportunity Commission (“EEOC”), the Department of Justice (“DOJ”), the Department of Labor (“DOL”), and the Office of Personnel Management (“OPM”)"

The report says that there are five areas that need to be addressed. These include:

1. Three agencies of the government have jurisdiction over pay discrimination and they do not coordinate efforts enough;
2. They feel they don't have enough data on pay and gender. So they will develop methods to extract this information from all the employers in the US, especially federal contractors;
3. They think employees don't know enough about their rights. The implication being that if they did they would turn their employers in more often. Also, employers don't know their obligations under the law, so they are going to provide information. They will also be hiring and training more investigators in order to step up criminal prosecutions.
4. They have determined they are not as "clean as a hound's tooth" so they are going to make sure they are complying with the laws too. (What an origianl concept!)
5. They don't feel the existing laws, especially the Equal Pay Act, are sufficient to handle the situation. So doing what all governments are compeled to do, they want to pass a new law, the Paycheck Fairness Act.

Here is my interpretation of their solutions:

1. Make sure that all agencies responsible do a better job of coordinating with each other. Hire more investigators and ferret out instances of pay discrimination in whatever form. Especially make the Office of Federal Contract Compliance Programs (OFCCP) an agent of the EEOC in enforcing wage discrimination based on gender violations in federal contractors. Increase the focus of EEOC on wage discrimination. Remove restrictions on the OFCCP regarding audits, hire more investigators and prosecute more employers.
2. Increase the methods used to extract data on wages from employers. If you are a federal contractor the amount of information you will have to reveal will be increased substantially. The goal is to reveal companies in violation of the laws (pick one) and to prosecute them. Failure to provide such information will result in loss of contractor status. Since they do not have that hold over the private sector they will probably change the EEOC reporting requirements and will be looking for more information. (My prediction is that the minimum company size for reporting on the EEO-1 will be dropped below 100, probably to the 15 employee level)
3. Undertake a public education campaign in order to make it clearer to women why and how they can sue their employers for pay discrimination. They will educate employers on their obligations in order to remove "ignorance of the law" as any excuse. After hiring several hundred more investigators they will be trained to find cases to prosecute.
4. Clean up the Federal government, so businesses can't complain that the Federal government isn't following its own rules.
5. Working with unions, push and cajole members of Congress to pass the Paycheck Fairness Act, because, after all, that is what government is in the business to do, pass new legislation.

Ok I admit, if  you read the report, they probably didn't use the same language I did. I was taking some "poetic license". But it is clear that the intent is to get harder and tougher on businesses, ESPECIALLY FEDERAL CONTRACTORS. If you are a woman working in HR at a company where you are paid less than the men in HR, this may be a mixed blessing. You may get more money but jeeezzz look at the extra work you are going to have to do as a result of this effort.

And Stephanie... I think your title is probably incorrect. It will most likely be the WOMEN from NEPET Are Coming.

OOPS Can't Ask That: The Impact of GINA At Work

When the Genetic Information Nondiscrimination Act (GINA), which went into effect last November, was first passed many HR types scratched their heads and said that they thought it was not really anything that would have day to day application to them. Indeed I was one of them. However, an article that appeared in both the print and online versions of the Wall Street Journal on February 2, 2010 pointed out some of the impact that GINA is having in the workplace. The article, written by Cari Tuna and entitled Wellness Efforts Face Hurdle, points out that company wellness programs may run afoul of the new law. Tuna, writes that many companies, in trying to improve their bottom-line, try to get workers to participate in wellness programs. Often these wellness programs start off with detailed health questionnaires that may include family historys. To increase participation a company may offer a cash incentive or an insurance premium reduction. A WIN-WIN for everyone you would think. The employee gets some cash and gets exposed to a wellness program that may improve their health or prepares them for future issues. The company gets a win by having healthier employees and thus reducing their costs in insurance and lost productivity due to ailing employees.

Unfortunately GINA takes the WIN out of that situation. According to a very fine publication of  Seyfarth Shaw, entitled GINA Restricts Acquisition and Use of Genetic Information by Employers and Group Health Plans, these actions fly in the face of the law. According to the article "...under the new regulations, a plan may not offer participants a different deductible, premium or contribution amount in return for completing a health risk assessment or participating in a wellness program that collects genetic information." However, the article also points out "...the regulations make it clear that a plan may offer a reward for completing an HRA (after and unrelated to enrollment) that does not ask about family medical history or genetic tests or services received by the individual or the individual’s family. The health plan may also request that the individual complete an HRA that inquires about family medical history and/or individual genetic test results, provided that completion of the HRA is wholly voluntary and is not tied to any financial incentive or disincentive."  So the result of this is that if you are currently using health risk assessments you need to familiarize yourself with this law.

The law also controls how health insurance companies deal with this information. Insurers are prohibited from conditioning "the availability of a disease management program or other benefits on an individual’s answers to HRA questions about individual or family medical history."  The article suggests that all employers review their agreements with their insurers to make certain they are in compliance with GINA. Failure to do so may result in HIPAA violations.

The Seyfarth Shaw article also points out steps that employers need to take to insure they are in compliance. These include: "...omitting genetic information from post-offer, pre-employment health history examinations and/or questionnaires; updating policies to prohibit discrimination based on genetic information; adding claims of “genetic discrimination” to waivers and releases where appropriate; and segregating lawfully-acquired genetic information from personnel files. Employers also must post information regarding GINA’s protections, which is contained in EEOC’s revised “Equal Employment Opportunity is the Law” poster..."  If you want more information follow the link provided above.

Tuna's article, the online version, reports that there have been some situations in which an employer has been accused of misusing genetic information and it cost them, to the tune of $2.2 million. They were investigated by the EEOC.

Because this law is still pretty new many people are not yet sure what they should do. The EEOC has promised that they will publish guidance for employers later this year and the Department of Labor is working on guidance for insurers. Part of the "great unknown" is in the area of "casual" disclosure. So stay tuned. In the meantime follow the advice in Seyfarth Shaw's article.

EEOC Is Making a List and Checking It Twice and It Isn't Even Christmas Time Yet

Here we are in the middle of October. The end of the year is rushing toward us, probably faster than we want it to. The Halloween decorations will be down in the retail stores and they will be putting the "ThanksChristmasGivingDay" decorations up and Santa will appear in the malls. The song that features the words "..he's making a list and checking it twice" will be blaring on the radio and over the store speakers. (Did that reminder of how close Christmas is make you wince?)

Well there is already one group that is making a list and checking it twice and it is NOT Santa. It is the EEOC. A One Minute Memo from the law firm SeyfarthShaw, LLP arrived in my email this morning entitled EEOC Takes Aim at Companies Policies Limiting The Duration of Medical Leaves. (click on the title to see the pdf) The opening line for this document is "Recent actions by the U.S. Equal Employment Opportunity Commission (EEOC) have signaled its intent take a more aggressive approach in enforcing the Americans with Disabilities Act (ADA). One employment practice that the EEOC is specifically targeting involves company medical leave of absence policies that place limits on the amount of medical leave."

When the ADAAA (The Americans with Disabilties Act Amendments Act of 2008) became effective on January 1, 2009 it was evident that, with the broadened definitions of disability and the requirement for an active accommodation discussion, more lawsuits would be filed against employers. And this is becoming true. The SeyfarthShaw memo goes on to say "Over the past two months, the EEOC has also filed a number of pattern and practice lawsuits on behalf of employees of large employers alleging that the employers violated the ADA by rejecting extensions of medical leave as a reasonable accommodation for employees with disabilities. The EEOC asserts that any employer that maintains an inflexible maximum leave policy, which it will not extend or otherwise modify in order to accommodate individuals with disabilities, is unlawful." And along with this statement a warning from the EEOC was issued "Acting Chairman of the EEOC, Stuart J. Ishimaru, highlighted the administration’s increased focus on ADA enforcement, noting that these cases 'should send a wake-up call to corporate America that violating the American with Disabilities Act will result in vigorous enforcement by the EEOC.' EEOC Regional Attorney John Hendrickson confirmed the EEOC’s position that policies that 'set arbitrary deadlines for returning to work after medical treatment unfairly keep disabled employees from working.'"

So what does this mean for HR? It means you need to review your policy and make sure it it up to date. You need to make sure that if someone asks for an accommodation you engage in a vigourous interactive process that is documented. And you need to realize that an extension of a medical leave will probably be seen as a reasonable accommodation.

The big question yet unanswered is: When will an extension be considered unreasonable? This will probably only be decided by a court case. Which one of you out there wants to be the test case?

Ageism in the Workplace

As I was watching the reflection of my hair being cut the other day I thought out loud "Holy crap, look at all that gray hair." The woman cutting my hair consoled me with "At least that is better than loose." Not the greatest of consolation, but it got me to thinking. As many of you know, I had my birthday on July 7th, my 58th such day. Not a hallmark age by any means. But I guess it is better than not getting there.

Age is important to us, especially it seems in the US. And AGEISM exists everywhere. According to the WiseGeek, ageism is a term coined in 1969 by Robert Butler. Most of us think of it in terms of discrimination against older people, especially in the workplace. As The WiseGeek says "Many people use this term specifically to refer to discrimination against older people, but ageism can strike people of all ages." Teens can feel shut out of the workplace with "adultism", a preference for older workers, and older workers feel shut out by "jeunism", where workplaces prefer younger workers.

The legal protection in this country against discrimination based upon age is provided by the Equal Employment Opportunity Commission's (EEOC) enforcement of Age Discrimination in Employment Act (ADEA)of 1967. The law states that it is illegal to discriminate against anyone over the age of 40 in all aspects of employment, unless age is a Bona Fide Occupational Qualification (BFOQ). There is no protection for workers under the age of 40. However, the fact that this law exists does not stop the discrimination from occuring, as you might have guessed. The EEOC reports that in 2008 it "...received 24,582 charges of age discrimination. EEOC resolved 21,415 age discrimination charges in FY 2008 and recovered $82.8 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation)." This is almost 25% of the total number of discrimination claims of all types.

I witnessed an act of "ageism" personally the other day. I was not the target, but I was involved. I was at a local Starbucks (I name the company, but not the location, because hopefully someone in their HR department will read this and realize they have some further education to do. I am sure it is more widespread than this one spot) and I was ordering coffee and trying to pay with my coffee card. However, it needed more money put on it so I also gave the gentleman a credit card. I asked him to load money on my coffee card and to then pay for the drinks with my coffee card. Perhaps I was not clear, but he did not understand me. We went back and forth a couple of times and finally he had to ask for some help. Now the guy was probably about my age or within 5 years. But we were clearly not communicating. So a younger worker, who did pick up on what I wanted, helped him complete the transaction.

End of story? No, the next day I was sitting in the same store, with my under 30 adult daughter, and one of the baristas came over and apologized for "the confusion yesterday." In that apology she said "What can you expect, he is old." Now, being in HR and of similar age, I immediately bristled at this and gave her a mild rebuke. (I would have given her a lecture, but my daughter gave me a look that said "don't go there.")

All this leads to my musings on age. Age is important to us. It colors our perspective on everything. In the US we celebrate "youth" more than older age. Witness the statement "50 is the new 30", or whatever variation you use. I was reading an article as I was waiting to get my haircut about how women over 40 can avoid behaving old. (Text with your thumbs not your index fingers and never wear a watch, among other advice.) Magazines are knocking actresses who are not wearing "age appropriate" clothing. We curse at old people who are driving the car in front of us and we avoid going to Kroger on Wednesday. None of us are immune. I swear at AARP everytime I get their offers to join. At least there are signs that some aging is being accepted. December/May romances between older women and younger men is more acceptable and "Cougars" are being celebrated.

The important thing, however, from an HR perspective is that discrimination in the workplace on the base of age (albeit older age) is illegal and it will cost the company money. Workers need to be trained to be more aware of what they say, how they say and what they do. You need to focus on JOB PERFORMANCE. In my Starbucks example, if the "older" worker was let go due to his actual poor performance, the "innocent" statements of "what can you expect he is old" may cost the company alot of money. So be aware and train your employees.

"Cat's Paw": Avoid Being the HR Dupe

I learned a new phrase today so I thought I would teach it to you. I was reading an article on a case on discrimination that was headed to the U. S. Supreme Court before it got settled at the last minute. It involved a case of discrimination in which a Hispanic supervisor was biased against a black employee. The supervisor was made life difficult for the employee in a number of ways, including assigning him to weekend overtime work. The employee refused in one case. The supervisor took his case to the regional HR manager (who worked in Arizona, not New Mexico where the supervisor and employee were located). The HR manager told the supervisor to tell the employee that refusal to work would be grounds for termination. The employee called in sick instead of coming to work and was fired.

The employee filed a discrimination claim. Initially the courts dismissed the claim, but an appeals court reversed saying that HR was the decision maker, but it was based upon information provided by the supervisor and what was given was not the complete story. It was headed to the Supreme Court, but the company settled before it got there, paying out $250,000 and committing to alot of training.

In the description of the case they used the term "cat's paw." I had no idea what this meant so I headed to the Internet. Basically it is a term that comes from a fable in which a monkey convinces a cat to reach into a fire to retreive roasting chestnuts. The cat does so, gets its paw singed and the monkey gets all the chestnuts. The cat was duped into being the tool of the monkey, keeping the monkey from getting burned.

In this particular case the HR manager was the cat's paw of the supervisor. The supervisor, by not giving all the information, duped the HR manager into making a decision that the supervisor did not want to make or could not make, but wanted that result. The HR manager, by being remote did not know of previous bias against the employee or favoritism for other employees. The HR manager did not do his/her homework in the case.

The result of this shows that the company can still be held liable for decisions made with good intentions by unknowing parties if the complete story is not known. This means that HR managers need to thoroughly investigate before making recommendations on terminations, etc. As a consultant I occassionally get calls asking "can we fire this person?" I find out about the facts of the case, but my line of questioning always comes back to "Is there any reason to suspect that there may be some bias in this situation?" I ask that question several times, several ways.

So avoid being a "cat's paw" in situations. Don't allow yourself to be duped into making a decision to justify someone else's bias.

Ever Hear of E-RACE? Me Neither.

In a press release newsletter I receive from the EEOC I was reading about a staffing company being sued by EEOC and losing. In the article there was a reference to a February 2007 initiative by the EEOC called E-RACE. Being the curious type, and having never heard anything about this, I followed the link. I discovered that E-RACE stands for Eradicating Racism And Colorism from Employment. As the introduction says "In an effort to identify and implement new strategies that will strengthen its enforcement of Title VII and advance the statutory right to a workplace free of race and color discrimination, EEOC is instituting the E-RACE Initiative."

"The E-RACE Initiative is designed to improve EEOC’s efforts to ensure workplaces are free of race and color discrimination. Specifically, the EEOC will identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and the litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment. As a framework for implementing the E-RACE Initiative, EEOC has developed a set of detailed E-RACE goals and objectives to be achieved within a 5-year timeframe from FY 2008 to FY 2013." You can click on the link to see these objectives.

My first thought in reading this was "I thought that is what the EEOC has supposed to have been doing all along. Why is it a new initiative?" They go on in their verbage to ask the question "Why Do We Need E-RACE?" They answer the question with a discussion of how many claims there are and how they seem to be increasing. Well that is fine. And racsim and colorism do need to be eradicated. But the real reason for this new initiative seems to be that the EEOC has not been doing their job as well as they should have and they needed to kick themselves in the butt and did so by this new "initiative."

In addition to racism and colorism there are also other increasing areas of discrimination. What about AGEISM? As a baby-boomer I would like more protection there. How about another initiative? I suggest PAGE, Protecting Another Graying Employee! Tell me what else you would like to see.

Discrimination in the Workplace: Double Digit Increases

The Equal Employment Opportunity Commission (EEOC) published a News Release on March 5th detailing the bias claims from 2007 compared to 2006. With one exception, bias claims in all areas saw double digit increases. Here are some of the highlights:

• Race continues to be the largest number of claims, with 30,510 claims, an increase of 12%;
• Retaliation claims had the largest increase, up 18% to 26,663;
• Age discrimination has the second largest percentage increase, up 15%;
• Sex/Gender claims were the only area with a single digit increase of just 7%, however, during FY 2007, pregnancy charges surged to a record high level of 5,587, up 14% from the prior fiscal year’s record of 4,901. Sexual harassment filings increased for the first time since FY 2000, numbering 12,510 – up 4% from the prior fiscal year’s total of 12,025. Additionally, a record 16% of sexual harassment charges were filed by men, up from 9% in the early 1990s.
• Disability claims reached the highest level in 10 years.
• The EEOC recovered $345 million in monetary relief for the charging parties.

So why this increase in activity? Here is my take on some of them:

1. More sexual harassment charges by men- More women bosses?
2. Retaliation charges- Lack of training in companies to reinforce that retaliation is as illegal as the harassment and lack of follow up by HR to insure it is not occurring.
3. Slow down of sex/gender claims- better balance of male/female ratio in the workplace.
4. Disability claims- a greater willingness of the disabled to enter the labor force and a result of an aging workforce as baby boomers age;
5. Age claims- well.... I think everyone probably knows the answer to that one.

What is your take on this? You have any alternative explanations?