Genetic Information Nondiscrimination Act (GINA)

Almost a year after the GINA statute took effect, the EEOC has at long last issued final regulations to implement the law.

The Genetic Information Nondiscrimination Act (GINA) final regulations took effect last week, on January 10, over a year after the law itself began protecting individuals from genetic information discrimination in the workplace. The final regulations largely adopt the requirements of the proposed regulations, but they do include some noteworthy additions such as a new notice requirement and expanded definitions for genetic information and testing. (This article is excerpted from the December 2010 HR Matters monthly newsletter.)

Employment Discrimination Protections and Definitions

The GINA, like Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), applies to employers with 15 or more employees. It prohibits covered employers from refusing to hire an applicant, or from discriminating against any employee, with respect to the compensation, terms, conditions, or privileges of employment because of “genetic information.” It also prohibits retaliation against any individual who has opposed any unlawful act under the GINA or because an individual has participated in any investigation, hearing, or proceeding under the law. Further, comments to the final regulations indicate that the EEOC considers the GINA to prohibit harassment based on genetic information.

“Genetic information” is defined to mean, with respect to any individual, information about the individual’s genetic tests, the genetic tests of family members of the individual, and the manifestation of a disease or disorder in family members of the individual. The term also includes a request for or receipt of genetic services (such as genetic tests and genetic counseling) or participation in clinical research involving genetic services. The term does not include information about the individual’s sex or age or about race or ethnicity if the information is not derived from a genetic test.

“Family member” is defined by the Act to include a dependent of the individual, which according to the final regulations includes any person who is a dependent of the individual because of marriage, birth, adoption, or placement for adoption. Further, family members include “any other individual who is a first-degree, second-degree, third-degree, or fourth-degree relative” of the employee or applicant. Although the Act does not define these terms, the final regulations do. A first-degree relative includes parents, siblings, and children; a second-degree relative includes half-siblings, grandparents, grandchildren, aunts, uncles, nephews, and nieces; a third-degree relative includes first cousins, great-grandparents, great-grandchildren, and great uncles and aunts; and a fourth-degree relative includes great-great grandparents, great-great grandchildren, and first cousins once-removed.

“Genetic test” is defined by the Act to mean an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes. The final regulations give several examples of genetic testing including a test to determine if someone has the BRCA1 or BRCA2 variant evidencing a predisposition to breast cancer.

Testing that is not considered genetic testing includes a medical examination that tests for the presence of a virus that is not composed of human DNA, RNA, chromosomes, proteins, or metabolites; a test for infectious and communicable diseases that may be transmitted through food handling; and complete blood counts, cholesterol tests, and liver-function tests. The final regulations also clarify that testing to determine the presence of alcohol or drugs is not a genetic test, although a test to determine an individual’s predisposition to alcoholism or drug use is.

Leadership Honesty & Integrity

We live in an era where many people look at integrity as an option, rather than a bedrock foundation stone.” Everyone knows right from wrong. Right? Wrong. People disagree about the definition of right and wrong all the time. Remember Enron? Yeah, thought so.

At Enron, the problem started at the top. Enron was an organization in which the executives surrounded themselves with “yes” men/women. Did the culture allow people to suggest alternatives or allow dissent? Probably not. Those employees were probably berated and criticized for not being “team players.” As employees, you’re told to be diligent, to follow through, to be “self-starters,” to have a good attitude, to be flexible and patient and dependable and loyal and respectful. You’re told there is no “I” in “team.” You’re told, “You should just be grateful you have a job.”

I was raised in the belief that honesty is the best policy. But in business, oftentimes that value is overlooked. But the lack of integrity, and honesty, can have a significant impact on business. From a customer standpoint, customers will simply not consider a company that shows any less than the highest level of integrity. That’s a direct impact to the bottom-line. What do you do when you create a reputation that is so ill that potential employees won’t consider working for you?

Let’s focus on the impact to the workforce. A leader must be truthful and honest when interacting with subordinates, as well as others in an organization. Honesty is the precursor to trust. Once a leader is perceived to be dishonest, he/she are also thought to be untrustworthy. The only types of individuals that would place trust in a dishonest person are those individuals that are dishonest. What some employers don’t seem to understand is that in the business world, honesty truly is the best policy. Even lying with the best possible intention can result in compromised credibility, questioned integrity, and negatively impacted business success with employees and clients alike. Avoid the counter-productivity of excuses, blame, not meeting commitments or keeping promises.

When you move into a leadership position, assume that people will think you are a little dishonest. In order to be seen as an honest individual, you will have to go out of your way to display honesty. People will not assume you are honest simply because you have never been caught lying. Trust is the essence of integrity. Without trust you cannot have integrity. In an organization, a leader that is not trusted by their subordinates in essence is not a true leader. He/she may be ambitious and competent, but without trust cannot have integrity and will fail as a leader.

Remember, credibility and integrity begins at the top with the organization leader.

Contract Employees

In case you missed it, USA Today recently reported on the rise in litigation associated with misclassified workers. The number of worker class-action lawsuits claiming that employers misclassified employees as independent contractors rose 50% this year. That's an increase to a record 300+ cases.

Let's talk about the financial impact. The Department of Labor forced employers to pay $6.5 million in back wages to over 5,000 employees in fiscal 2010. That's a sharp increase from the $2.6 million owed to over 2,000 employees last year.

Companies increasingly use contractors to meet peaks in demand and complete short-term projects. According to Barry Asin, president of Staffing Industry Analysis, the portion of contingent workers in the labor force is up to about 10% from 8% five years ago. Using contingent workers usually cuts labor costs (unemployment taxes, workers' compensation, health care and other benefits) by about 30%. However, when you look at the number of lawsuits and related penalties, misclassification is a serious issue.

Whatever title used, the issue at hand is whether a worker is an employee or an independent contractor. The answer is determined by the level of control the employer has over the activities of the individual.

Texas Workforce Commission offers an Independent Contractor Test based upon the IRS "Twenty Factor" test. The test determines the amount of control the employer has over the individual. An independent contractor is self-employed, bears the responsibility for his or her own taxes and expenses and is not subject to an employer's direction and control. The IRS has recently attempted to simplify and refine the Twenty Factor test. The test has been reduced to eleven main tests and organized into three groups; behavioral control, financial control and type of relationship.

If you have difficulty in determining the status of an individual, always consult a knowledgeable labor and employment law attorney.

The Quicker You Let Go Of Old Cheese, The Sooner You Find New Cheese

In 1998, an amazing little book was published. Titled “Who Moved My Cheese?” the book was a business fable that dealt with four typical reactions to change in work and life. Whether you are a “Sniff” who anticipates change early, or a “Scurry” who scurries into action and adapts, change impacts us all.

The American Institute of Stress estimates that stress in the workplace costs U.S. corporations over $300 billion annually, or more than ten times the cost of all strikes combined. That’s significant.

Change becomes a major stressor for employees no matter what form it takes. It could be reorganization, takeover, merger or downsizing. If there is a change in structure, or in the management, the change threatens the emotional security of the employees. The less control an employee has over his/her situation, the greater his/her stress.

But why is stress a result of change? Well, most people are resistant to change. Be honest; when change happens, people prefer to stay in their happy little comfort zones. One of the reasons that change is often viewed as a stressor is that people tend to view change negatively. People, naturally, have a tendency to prefer stability and security. We are afraid of the unknown and oftentimes the response to change is visceral. “I don’t want to deal with this change, so where’s the closest exit?”

The Global Business and Economic Roundtable on Addiction and Mental Health released a survey on work-related stress. Two of the top ten items causing employees stress are lack of communication and lack of control. As stated above, the less control an employee has over his/her situation, the greater his/her stress. Yes, I repeated myself.

What can we do to lessen the negative impact of change? As an employer, make the employees part of the change and allow them to assume some ownership within the change process.

• As a manager, you need to communicate – to create understanding of the change. However you decide to communicate, communicate that you are committed to the change and seeing it through.
• Convey the message that you are confident the “team” will make it through the changes and that you need their input to make it work.
• Recognize, and admit, that the change may negatively impact some people.
• Understand the various personalities of the people involved as different people react differently to change.
• Provide information that will reduce uncertainty and ambiguity about the change. Change needs to be understood and managed in a way that people can cope effectively with it. Help the employees focus on the big picture.
• Allow the employees to communicate their reactions and concerns to you. Request their input, utilize their suggestions. Involve the employees and lead them through the change.


It is often said that “the only constant is change.” So, prepare yourself.

Dedicated to Gary Toche.
Your leadership will be missed. Bon Voyage

Employee Absenteeism, The "Lighter" Side

CareerBuilder’s 2010 annual survey on absenteeism provided some very unusual excuses that people gave for missing work. I thought I would provide us all with a laugh and celebrate the “ingenuity” of our co-workers.


• Employee said a chicken attacked his mom.
• Employee’s finger was stuck in a bowling ball.
• Employee had a hair transplant gone bad. (I had a co-worker call in one time because her “hair coloring” was all wrong!)
• Employee fell asleep at his desk while working and hit his head, causing a neck injury (Workers' Compensation?)
• Employee said a cow broke into her house and she had to wait for the insurance man.
• Employee’s foot was caught in the garbage disposal. (There has to be a real story here!)
• Employee called in sick from a bar at 5 P.M. the night before.
• Employee said he wasn’t feeling too clever that day.
• Employee was in a boat on Lake Erie, ran out of gas and the coast guard towed him to the Canadian side.


And to celebrate our upcoming holiday:

• Employee called in the day after Thanksgiving because she had burned her mouth on pumpkin pie.

Happy Thanksgiving!!!!

Employee Burnout

As a result of the weak economy, employers downsize, oftentimes creating a "domino effect" that is easily visible to organization and employee both. In response to the loss of personnel, the organization reassigns job duties. The existing employee experiences an increase in the workload. Hand in hand with the increase in workload comes stress and burnout for the employee. The organization experiences reduction in work hours due to increased employee absenteeism, tardiness and reduced productivity. Additionally, employee burnout can be visibly felt by other employees thereby lowering team morale.

Stress in the workplace can be hurtful to both employees and organizations as employees loose interest in their jobs, feel tired and depressed. Morale can be the fuel that drives an organization forward or the fuel that feeds the fires of employee discontent, poor performance, and absenteeism (Ewton, 2007).

CareerBuilder’s annual survey on absenteeism shows 29% of workers have played hooky from the office at least once this year. Let's be honest. Yes, we have all done it. The survey states that 27% of employers think they are seeing an “increase in bogus sick excuses from employees due to continued stress and burnout caused by the weak economy.”

Here's how employers are responding:

• 29% reported they have checked up on an employee who called in sick.
• 16% said they’ve fired a worker for missing work without a proven excuse.
• Of the employers who checked up on an employee, 70% said they required the employee to show them a doctor’s note.
• 50% called the employee at home.
• 18% had another worker call the employee, and,
• 15% drove by the employee's house or apartment.

To help employees avoid burnout, insist employees use their vacation / PTO time. Try to reduce overtime. If overtime is required, try to give as much advance notice as possible. Give the employee a "mental health day."

Email Communication & "Netiquette"

During the drive into work this morning I was, as always, listening to my favorite radio station. This morning a listener phoned in with a rather unique dilemma. She had received (erroneously) an email from her Corporate Human Resources Department with an attachment that contained the salaries of all her co-workers. Ouch. (And shame to HR!) It seems as though she shared the same last name as the intended recipient. This issue aside, do you practice email “Netiquette?”

Ninety two percent of Internet users in the United States use email. That's a huge number since 73% of those living in the U.S. use the Internet (Information Please® Database, Pearson Education, Inc., 2008). At 92%, the potential for workplace email faux pas is tremendous. So what can you do to avoid potential errors?

1. Avoid being quick on the trigger. Remember that you can’t recall an email that has been sent in haste. It can’t be “unsent.”
2. Re-read your emails before sending them out, it could be a life-saver in the end.
3. Fill in the “to” section last to avoid sending the email prematurely or to the wrong party.

A couple of other email issues come to mind:

Is it possible for the message to be lost in a cloud of “fluff?” Yes! Try to be concise and clear with the message you wish to convey. Is the information that you mean to include in the email actually there? Did you answer all the questions thereby pre-empting further questions?

Can someone be offended by your “tone” in an email? Yes! Intent and meaning are hard to convey since the recipient receives only the words. They have no clue as to your frame of mind, or mood, at the time you wrote the email. And please, do not write in CAPITALS, no one wants to hear you SCREAM.

Is it possible to be too casual in an email? Yes! Avoid using the texting shorthand that has become so popular. Written communications are becoming short and abbreviated due to the increase in texting, Twitter, etc. This texting shorthand is a language tailored more for IM'g than email. Also, please use a salutation in your email, and maybe a closing. A courteous greeting may make your email less demanding and terse.

My rule of thumb has always been that, if it’s a business email, be professional. Avoid those little smiley faces. And, use spell check! Remember, your correspondence says a lot about you. Good or bad!