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.

Today, about 25 business people & I attended a roundtable discussion with U.S. Congressman Peter Roskam (R-IL, 6th District, O’Hare Suburbs; DuPage County) regarding the increasingly controversial Employee Free Choice Act (EFCA).

It was a fantastic & frank forum.  The animus against this act was palpable in the room; as was Congressman Roskam’s.

The general consensus is that from a management perspective, this is one scary bill. It basically calls for non-secretive union elections (union elections are currently secret ballot) & permits 3rd party arbitrators to impose contractual terms on the parties, if they’re unable to agree on a contract. 

The law passed easily through the House of Representatives during the last Congressional session, so it will probably pass through the House this session again.  The Senate seems to be a tougher call because according to Congressman Roskam, there are some Republicans like Pennsylvania’s Arlen Specter who are currently in favor of it.  However, not all House or Senate Democrats support the bill either.

My concern isn’t an increase in the number of union employees in the private sector, which many critics argue will happen (I don’t think this is a given because private sector union membership has been in decline for decades & labor seems unable to get its act together).  My concern is that along with the EFCA & other laws already signed by President Obama (recent Executive Orders (see Project Labor Agreements & Non-Displacement of Workers), the costs to manage union election campaigns will greatly increase (I’m talking about prevention, avoidance & decertification campaigns) & stifle innovation due to draconian rules enforced by unions (even at the expense of labor).

Also, the possibility of increased labor costs in the public sector, due to these same recently enacted laws, may increase the cost of private sector labor, and render us non-competitive in foreign markets as well as increasing outsourcing to those markets.  One fear of many opponents of EFCA, as well as other similar laws is that manufacturers will leave the U.S.

Hopefully, if the law does pass, then Congress will similarly allow the same process for union decertification elections.

Reader Benjamin Wright commented on my 9/14 post concerning workplace emails and other electronic communications at work:

Chuck: Knowing these kinds of smoking-gun records are inevitable, I argue an employer can use technology proactively to make its e-records more benign. It can broadcast intent to be lawful and a request that adversaries come forward as early as possible. What do you think? –Ben
http://hack-igations.blogspot.com/2008/05/nix-smoking-gun-e-discovery.html

My response to Ben is:

Hi Ben,

Thanks for the comment.  I appreciate it.

I agree with you, and advocate that employers should go even further.  Because the employer is the leader at the workplace, the employer is obligated to use its technology in a proactive and benign way to protect all assets, including employees.

Specifically, as opposed to a blanket prohibition against employees using an employer’s technology for personal use, an employer might try letting employees save time and energy by using its technology to check on the kids, parents, family, friends, pets, shop, or take care of other personal needs, so long as nothing illegal or unethical is involved.  This could also help to alleviate stress and increase employee productivity.

Also, regardless of HIPAA and similar laws, an employer should strive to maintain the confidentiality of employee medical records.  Consequently, employees won’t have to fear using employer provided online health services (or at least minimally using such services).

Moreover, as you allude to, a company can permit its employees to anonymously (or not) alert the company to legal or ethical issues or other problems.  In this way, retaliation against the complaining employee can be eliminated or at least minimized.  In short, electronic devices are just another means to communicate, but they allow us to save time and money, and if used properly, could save companies money.

During my conversation with the Christine Caulfield of Law360.com, I also indicated that we’re really at the genesis of how all of this technology can help (or hurt) us.  A perfect example is cell phone quality.  We still suffer from dropped calls, murky sounding voices and other related problems.  Eventually, these issues should be resolved.  New issues will obviously arise (e.g., how many clones will each person be allowed to make of themselves, how will we regulate traffic patterns for our flying cars, and how will we prevent people from using invisibility cloaks for improper purposes.  :-) ).

This post was contributed by Heather Johnson, who writes on the subject of video production manager.  This is Heather’s second post to my site. Her first article, regarding employee complaints, can be found here.  She invites your feedback at heatherjohnson2323@gmail.com.  Some of my own comments follow Heather’s article. Thanks again Heather.

It’s not something that organizations, particularly their HR departments, are too enthusiastic about, but exit interviews are a rich source of information that companies can use positively as they grow in age and experience. Exit interviews, if not framed and structured properly, end up either being a useless exercise or one that leaves a bitter taste in the mouth with unnecessary recriminations and blame. Here are a few guidelines for HR managers to follow when conducting exit interviews:

• The best exit interviews are those conducted face to face, preferably by someone who is not known to the employee, either an outsider or someone from another department. Direct supervisors or managers are the worst choices to hold these interviews. If an employee is not too keen on a direct meeting, a questionnaire could be used to procure the necessary information.

• A useful exit interview must capture employees’ honest opinion of the company, their reasons for leaving, their suggestions for improvement within the company, any problems they may have had within the company, and their views on compensation and job satisfaction. It must also focus on retrieving knowledge specific and relevant to the employee who is leaving, such as contacts and methods that could be used to find and train suitable replacements.

• Exit interviews are more suited to employees who are resigning or leaving the company on their own volition rather than for those who have been laid off or terminated on other grounds. The latter kind would not be too cooperative and the answers they provide may not be a true reflection of the work conditions that prevail in the organization.

• No employee should be forced to attend exit interviews – they must be completely voluntary. Employees must be informed about the purpose of the interview and asked if they would return to the company, if asked, at some future date.

• Exit interviews must not be undertaken as exercises either to defend the company’s policies and practices or to conduct a post mortem on the employee’s performance within the company. The interviewer must adopt a polite and courteous attitude towards the leaving employee, even if the parting of ways is not too amicable.

• The information one infers from an exit interview is most important to the company – allegations and allusions to personal attributes and characteristics do not help. What does make a difference are details that can help improve the company’s management practices and policies in a way to improve customer and employee retention.

Organizations would do well to assess the importance of conducting regular employee feedback sessions during the course of their employment rather than conduct exit interviews after they announce their resignation. While employees who are leaving tend to be more honest since they have nothing to lose by sucking up to their higher ups, anonymous questionnaires also help achieve the same result. At the end of the day though, a constant appraisal of the working atmosphere within the company will help in bringing down attrition rates considerably.

Chuck Krugel’s Comments:  Although exit interviews can provide useful information, and can ease the exit transition, I’m not familiar with research or studies that indicate any sort of cost versus benefit analysis of exit interviews.

Therefore, prior to implementation, I caution employers to determine the costs of conducting exit interviews, and to either research or analyze what types of questions and format of the exit interview will work best for them.  Additionally, if an employer decides to conduct these interviews, implement them across the board, and not on specific employee groups.  This may help to avoid disparate treatment or disparate impact claims.

In other words, in theory, exit interviews can be useful, in practice, pay attention to the what, why, how, when, etc.  Why spend time and money if you can’t clarify the costs and benefits?

Earlier this year, I gave a 2 hour training session for a Chicago-based nonprofit. The training concerned progressive discipline and discharge. As typical with most of my training sessions, Q & A and role playing were emphasized. The session was conducted for middle and senior managers with supervisory responsibilities. The training also included a handout which I’ve posted on this site as a PDF. You can access the 10 page handout here/link. In order to maintain confidentiality, I removed the business’ name and all identifying references to the business.

Below is a sample of the handout:

WHAT IS PROGRESSIVE DISCIPLINE?

Simply stated progressive discipline is the concept that employee discipline is administered in an incremental and ascending manner. That is, each repeated infraction results in more serious disciplinary action leading to discharge.

Obviously, when and how progressive discipline is used depends on the nature, frequency and magnitude of the misconduct.

For example, a five-minute tardiness MAY result in a verbal warning on the first occurrence, a written warning on the second occurrence and a suspension on the third occurrence, IF each occurrence happens in a relatively compressed time period (e.g., three days in a row, or three weeks in a row). However, if each instance of tardiness is isolated or sporadic (e.g., three months in a row), then suspension for the third occurrence might be extreme.

As indicated above, the nature or magnitude of the misconduct MIGHT warrant progressive discipline unnecessary.

For example, beating up a coworker might warrant immediate termination (assuming there’s no extenuating circumstance). The same goes for theft or being under the influence of illegal drugs or alcohol.

As stated in ABC Company policy manual, “The seriousness and frequency of the violation will determine the disciplinary procedure to be used. Please recognize that we may elect to skip or repeat disciplinary actions.”

More on progressive discipline is discussed in the sections How Much Money Does an Employment Dispute Cost & What’s Your Likelihood of Getting Into an Employment Related Dispute or Being Sued? and The Costs of Unemployment Compensation (UC) Claims.

WHAT IS WRONGFUL TERMINATION

Also known as wrongful discharge this is the legal mandate that any termination which violates the law, contract or public policy is illegal.

Illinois doesn’t recognize wrongful termination in the public policy context, but does recognize it in the context of any law or breach of contract.

Public policy is a commonly known policy against termination for reasons other than documented performance or misconduct. It could mean laying off outside of seniority, firing a falsely accused employee, or some other unjustified firing.

An increasing majority of states don’t recognize public policy as being grounds for employer liability and our increasingly strengthening and enforcing the employment at-will doctrine.

Consequently, wrongful discharge is commonly known to be any discharge that occurs in violation of any of our civil rights statutes or ordinances (race, sex, national origin, sexual orientation, age, disability, military status, etc.), or any termination which violates a provision in a legally binding contract.