A few months ago, I had the pleasure of meeting Don Paullin the owner and founder of Hiring Firing Experts, Inc., and the author of the book reviewed here Hire Hotdogs, Fire Baloney; Hiring the Best.  Don has 20-plus years of experience in the HR and operations field working for large corporations and now consulting to them.

The book is good and practical, and at less than 200 pages it’s a quick read.  The key element to Don’s approach is to craft a meaningful job description.  Hiring the best is a direct result of the analytical process that goes into the creation of a good job description and sticking to that job description in the hiring and assessment process.  Don also provides hundreds of great real world examples of interviewing questions, criteria and hiring tips.

One of the best things about Don’s book is that it’s common sense oriented and immediately applicable to running a business.  Once you understand the purpose and how to create a decent job description, everything else (e.g., interviewing, hiring criteria, selection, rejection, assessment) is logically based on that job description.

Although I may somewhat differ with Don regarding the job description’s necessity, this difference in approach doesn’t mean that I believe that job descriptions are useless or that any of his other tips are unnecessary.  Instead, my two keys to effective workplace relations is to adhere to the “Golden Rule” (i.e., treat employees well), and pay them on time and accurately (don’t mess with employees’ money).  Both approaches aren’t necessarily inconsistent with one another.  My approach may be more suitable to entrepreneurs, or those who like to go by their gut, and don’t want to deal with employment related issues in any sort of analytical way.  Because Don’s approach is so analytical, some may shy away from that level of analysis because of the fear of bureaucracy and red tape that sometimes inherent with HR practices.

Then again, whereas my approach is based solely on my own observations and opinions, and not on empirical or legal research, and Don’s approach is more grounded in legal and empirical research, from a preventive and proactive human resources perspective, Don’s approach makes more sense, and should help to greatly reduce a business’ employment related expenses and increase profits.

On my LinkedIn group, California based attorney and group member Stefan Miller posted some great information about the recently effective Genetic Information Nondiscrimination Act (“GINA”).   This information is concise and easy to read.  So, I thought that it would be useful to post here too.  This post includes discussion between other group members discussing GINA.

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) becomes effective November 21, 2009, applies to businesses with 15 or more employees, and is likely to have a potentially significant impact on a variety of employer obligations, policies and practices. For example, GINA will impact existing Company employee handbook policies, practices relating to medical and physical examinations, wellness programs, and record-keeping and training practices. In addition, effective immediately, employers must post the new version of the EEOC poster – “Equal Employment Opportunity is the Law” – which incorporates both GINA’s new requirements as well as changes made by the recent amendments to the Americans with Disabilities Act (“ADA”), which took effect on January 1, 2009.

For more information, click on the following link:  http://www.jdsupra.com/post/documentViewer.aspx?fid=af5f4c95-fa50-41cb-9f9c-dd0fce63ca46.  This link takes you to a three page summary of GINA in either a Word or PDF format, which was written by Stefan.  Additionally, if you go to this link, you can obtain a free EEOC compliance poster, which includes GINA.  This two page poster is produced by the EEOC and is in PDF format.

1. Jacquie Seemann

Partner at Thomson Playford Cutlers

This is fascinating from an Australian perspective. We have nothing like GINA – the closest we come is provisions in our disability discrimation legislation which prohibit discrimination on the ground of a ‘presumed’ disability, including a presumed future disability.

2. Charles Krugel www.charlesakrugel.com

Regarding Jacquie’s comment about perceived disability, it’s the same in the U.S. under our federal & most state disability laws.

Not sure how GINA is any different from perceived disability when, based on my casual assessment of it GINA, it doesn’t appear to differ greatly from the perceived disability status.

Possibly, this is a matter of the U.S. Congresses addressing an issue that’s already been addressed in prior legislation; i.e., they’re calling greater attention to a hot and developing medical and privacy issue.

Speaking of privacy, I’m also, not sure of the GINA implications or overlaps with HIPPA either. Hopefully, these concerns will be addressed sooner rather than later.

3.        Stefan R. Miller

California Employment Law Attorney, Independent Workplace Investigator, Trainer and Principal of The Employers Law Group

I agree that there is a lot of overlap between GINA’s prohibitions and existing laws prohibiting perceived disability discrimination, including discrimination against someone for having a record of impairment (e.g., cancer). Like Charles, I agree that part of this is Congress’ effort to raise the profile of an emerging issue, particularly in the face of what appears to be some sort of significant legislative changes on health care. The big target of GINA was the health insurance industry but since a lot of information feeds through to health insurance companies from employers, I suspect Congress felt that they need to include protections in this particular piece of legislation. GINA also applies to employer-sponsored health insurance plans and, therefore, prohibits collection/use of genetic information in that sphere as well.

While I do not profess to be a GINA “expert”, I’ll take a stab at trying to identify some “new” wrinkles to GINA which fill in prior “gaps” in the law.

1. GINA establishes clear prohibitions about even seeking/collecting genetic information in the first place both through pre-employment and job pre-qualification medical examinations as well as in connection with wellness programs.

2. GINA also codifies into statute privacy provisions relating to how genetic information – including information inadvertently learned by the employer – must be handled/protected. I don’t know whether there are other existing federal statutory provisions that occupy this space. (In California, we have the Confidentiality of Medical Information Act.)

3. Notwithstanding substantial overlap with perceived disability discrimination under the ADA, there appears to be a subtle gap filled in by GINA. (I add this caveat: being out here in California where plaintiffs rarely sue under federal law — as California law is significantly more favorable — I will defer to those with more knowledge of ADA.) One thing GINA appears to be driving at is the notion of discriminating against someone because of the possibility one is susceptible to one day having a disease or genetic condition at some point in the future due to family history. I don’t believe that is covered under the ADA. In other words, the employer learns (either through an inadvertent self-disclosure or through a pre-employment medical exam) that Applicant’s sibling or parent was just diagnosed with a serious form of cancer. While there is no evidence that Applicant has the disease or that the employer believes Applicant is presently disabled in any way, employer refuses to hire Applicant for fear that at some point in the future, Applicant will become disabled. Another example would simply be if an employer terminated Employee X after learning that a sibling or parent has some form of cancer out of a generic concern employee would one day get the same cancer and have increased health insurance premiums or become disabled — even if employer contends it had no knowledge of Employee X having cancer and that, in fact, employer did not believe Employee X had cancer.

4. Even on the HIPAA/GINA issues, here again, I believe the changes are primarily on the insurance side. However, I believe that HIPAA still governs and applies to unauthorized disclosures of genetic information, an areas that GINA does not address. As for insurance issues, my understanding is that HIPAA permitted underwriters to use genetic information for underwriting purposes. GINA prohibits health insurers from collecting/using genetic information for underwriting/eligibility. My further understanding is that, while HIPAA already provides some protection against genetic discrimination in group insurance, GINA extends coverage to the individual insurance market.

I’d be interested in hearing anyone else’s thoughts or insights.

- Stefan

Stefan R. Miller wrote:

Here’s another resource I recently came across at John’s Hopkins Genetics & Public Policy Center. Consistent with our prior discussion about the primary purpose of GINA, it appears that most of the information on their website is focused on the health care side. But here are some FAQs which are also directed at employment discrimination:http://www.dnapolicy.org/gina/faqs.html

I know there are a few other limited exceptions but I also came across something else I had not seen previously which mentioned an employer can conduct genetic testing if expressly authorized by the employee and if the information does NOT go to the employer but instead goes only to the employee and his/her treating health care providers. I presume this is in connection with an employer wellness program but there was no specific citation or reference.

On August 5, 2009, I did my 2nd live interview on the Recruiting Animal show on Blog Talk Radio. The interview lasted about an hour & covered such topics as legal issues in recruiting & ruse calling (i.e., using a fake identity to get past a company gatekeeper). You can listen to the interview on the player below, at RA’s page on BTR, or the MP3 here.

Today, May 2, 2009, I’ll be interviewed live on Chicago’s Kennedy King College’s radio station, WKKC 89.3 FM.  During this 50-minute long interview, hosts Derek McNeal and Charles Young will question me about general labor and employment law issues from management and employee perspectives.  This will be my 3rd appearance on the show since June 2007.  My April 13, 2008 interview is here.  Thanks to Derek, Charles, Stephen Anderson and everyone at WKKC for the opportunity.  This Saturday’s interview will also soon be available online.

Also, on Saturday, May 2, 2009, I’ll be speaking at the Woodlawn Community Service Corporation’s annual “Law Day” at Chicago’s Bessie Coleman Public Library, 731 E. 63rd Street, Chicago (Woodlawn Community obviously).   “Law Day” runs from 1PM-3PM and is free to attend.  I’ll be presenting on and discussing labor and employment law.  Other presenters will be discussing streetlaw, expungement, real estate/landlord tenant and family law.  For more information contact Gail Mercherson (773) 684-2944 or gailmercherson@sbcglobal.net, or check out this PDF flier.  The event is sponsored by WLCSC, the Chicago Bar Association and the Cook County Bar Association.

My blog (this website) received a really cool honor recently.  On April 3, 2009, The Delaware Employment Law Blog published by the law firm of Young, Conway, Stargatt & Taylor, published their Top 100 Employment Law Blogs.  This blog is on it!  Thanks YCST!

The City of Chicago’s Department of Business Affairs & Licensing has set up my 5th labor & employment law seminar with them. This free seminar will be on Friday, February 20, 2009, from 9:30am-11:00am at City Hall, 121 N. LaSalle St., Room 805.

Like my prior seminars, this will be largely Q&A and round-table discussion.  Although I’m pretty sure that one topic of concern will be the Obama administration’s & Illinois’ government’s current problems impact on our labor & employment laws.

Additionally, I’ll be providing participants with a 20-page handout summarizing 55+ federal, state and local labor & employment laws, and examining a variety of human resources related legal issues (to see a copy of an earlier handout click here).

Thanks to the Department of Business Affairs & Licensing (especially Alfredo Camarena) for organizing this. If you would like to attend just let me know or contact Alfredo Camarena at 312-744-5344 or alfredo.camarena@cityofchicago.org.