Here’s the itinerary:

Social media tools for your business:

• The Basics -How businesses use social media today (presented by Deb Lawrence of WorkNet);
• How to use LinkedIn, Twitter and Facebook (presented by Deb Lawrence)
• Social Media Policies – does your business need one? (legal & HR issues–presented by me); &
• Recruiting employees with social media (legal & HR issues–presented by me).

At the core of Stephanie’s presentation is the below Slideshare/Youtube presentation (click on the link below):

Statistical Analysis as Evidence in Employment Discrimination Litigation

Additionally, there was some good back and forth discussion on my LI Group concerning the importance of statistical analysis.  Instead of summarizing the discussion, I’ve posted it in its entirety below:

Charles Krugel www.charlesakrugel.com • This is great Stephanie! Thanks for posting it.  After watching your presentation, my impression is that statistical analysis may be more important for combatting class action certification than actual disparate impact discrimination.  Am I wrong?

Stephanie R Thomas, Ph.D. • Statistical analysis has a role in class certification, disparate impact and disparate treatment cases. For class certification, statistics can be used to examine commonality and typicality – I have a separate presentation on this (http://www.slideshare.net/TheProactiveEmployer/examining-class-certification-issues-with-statistical-analysis).

For disparate impact claims, I see statistics as having two roles. First, you can statistically examine your employment practices (hiring, promotion, termination, requirements for a given position, etc.) with respect to various protected group definitions proactively to identify any potential problem areas before you get to the litigation stage. Second, in the litigation context, statistics can be used to examine the challenged policy or practice to determine if there is statistical support for the claim of disparate impact.

With respect to disparate treatment claims, statistics can be used to assess whether there is statistical support for the claim. The analysis for disparate treatment is typically more complex than for a claim of disparate impact, because of the need to carefully define comparator groups and similarly situated employee groupings. But statistics can be very useful in assessing the merits of disparate treatment claims.

Charles Krugel www.charlesakrugel.com • Thanks again Stephanie!  The use of statistical analysis in disparate treatment claims is an interesting idea.

The reason that I wonder if statistical analysis is more beneficial at the class action certification stage of litigation, in disparate impact claims, is because that ruling lies with the judge not a jury. Whereas in a disparate treatment claim, the final determination of guilt or innocence is usually made by a jury.

In my opinion, it requires incredible communication skills to get statistical analysis across to a jury in a disparate treatment case. Obviously, on a case-by-case basis, it has to be determined whether and how to get this analysis across to a jury in a such a case.

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.

1) WHAT IS HUMAN RESOURCES & WHY IT MATTERS

2) EMPLOYMENT AGREEMENTS–to Use or Not to Use?

3) HOW MUCH DOES AN EMPLOYMENT DISPUTE COST & WHAT’S YOUR LIKELIHOOD OF GETTING INTO AN EMPLOYMENT RELATED DISPUTE?

4) WHAT’S APPROPRIATE TO ASK JOB CANDIDATES?

5) JOB CANDIDATE APPLICATION & SELECTION SUMMARY

6) EMPLOYEE SCREENING & RISK ASSESSMENT

7) INDEPENDENT CONTRACTOR VS EMPLOYEE:  CLASSIFICATION ISSUES

8) OVERTIME—EXEMPT VS NONEXEMPT CLASSIFICATIONS

9) UNEMPLOYMENT COMPENSATION

10) ILLINOIS EMPLOYMENT LAWS, Some Laws Likely to be Encountered by Businesses

11) FEDERAL EMPLOYMENT LAWS, Some Laws Likely to be Encountered by Businesses

12) SAMPLE DOCUMENTATION FORM—EMPLOYEE ACTION REPORT

13) FREE RESOURCES FOR RESEARCH

14) INFORMATION ABOUT CHARLES KRUGEL, Practice & Background Summary

I am currently completing a dissertation on the ways that various jurisdictions courts classify employment

It seems wrong that in 2009, people in Ireland should have to forego basic employment protection due to the inadequacies of the courts tests in to distinguish between a contract for service (independent contractor) and contract of service (employee). The question as to a person’s status of employment is becoming increasingly important in the recession as more people are being made redundant and an individual is only entitled to redundancy payment and other protection if they were employed under a contract of service. Judges in Ireland currently use 3 outdated tests (control test, integration test and mixed test).

In my dissertation I would like to examine whether there is a better way to determine if it is a contract of employment with a stricter approach that will take the circumstances into account. It is clear that the current method of classifying employment in Ireland leaves much to be desired due to the amount of uncertainty.

Would you be able to point me in the direction of where I would find information on how the courts deal with this matter in the United States?

Thank you for all of your help

Kind regards,
Barbara Mangan

My response was:

Interesting thesis that your working on. Timely and always relevant.

On January 1, 2008, Illinois (the U.S. state where I live/where Chicago is located) implemented the “Employee Classification Act” This law defines independent contractor and employee in the construction, landscaping and hauling industries. Various labor unions in Illinois were upset that many employers were classifying their employees as independent contractors in order to avoid paying payroll taxes and overtime and to avoid joining unions.

On the federal level, the U.S. Department of Labor discusses this in the “Fair Labor Standards Act,” which regulates who is exempt from overtime, and who an employee or supervisor is for purposes of the overtime exemption. More specifically, most supervisors can be paid a salary, and are therefore exempt from overtime. Also, the Internal Revenue Service goes into great detail via the U.S. tax code and regulations regarding who is an employee and independent contractor.

Also, many states define employee and independent contractor for purposes of payroll taxes such as unemployment compensation (I think that means the same as “redundancy payments”).

In general, U.S. courts and governments consider degree of control over the employee or contractor–ability to set hours, use of tools/implements, ability to work other jobs for other companies, structure of the business (both the principal and the contractor), how the employee or contractor portrays themselves to the public, and whether the work assignment is of a definite duration or indefinite.

All-in-all it’s pretty complicated because their are various state and federal laws at play here, and although there’s a great deal of overlap, it’s the subtle differences that cause confusion and get people in trouble.

I hope that this helps you and feel free to followup with additional questions, etc.

Additional Respone:  In my opinion, the U.S. legal system and government are years behind the business community regarding the changes in the employer/employee/contractor relationship.  This seems to apply to state and local governments more than our federal government, which tried to address this in recent Fair Labor Standards Act amendments (close but still “no cigar”).

Government and courts don’t seem to understand highly specialized technology and information professionals, how many of them wish to maintain an independent contractor relationship, and how they do in fact fit many of our varied definitions of an independent contractor.  Our laws and regulations indicate little comprehension of how businesses utilize highly specialized professionals on projects such as most anything in nanotechnology, WiMax, server technology, “green” technology, and on and on.

For example, I’m dealing with a matter right now where it’s clear that a regulatory agency has so far shown no understanding (or motivation to understand) engineering and technology professionals in the WiMax, cellular and server technology fields. Consequently, instead of taking the time to understand how this contractor’s duties do in fact fit the agency’s definition of an inedependent contractor, they’ve arbitrarly designated this person an employee and assessed taxes and penalties to the business.  This matter is currently on appeal.