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SHRM Newsletter: GINA Cautions About Health History Workplace Discussions

06/01/2011

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June 1, 2011

This is Utah SHRM Legal-mail no. 2011-10 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-   GINA CAUTIONS ABOUT HEALTH HISTORY WORPKPLACE DISCUSSIONS

-   AN INCREASE IN NONTRADITIONAL HARASSMENT?

-   RECENT SUPREME COURT DECISION HITS THE MISLEADING SPD

-   UTAH TO BEEF UP ITS E-VERIFY LAW?

-   FLSA LAWSUITS BREAK RECORD

-   NEW DOL APP AIDS FLSA CLAIMS…OTHER APPS TO FOLLOW?

GINA CAUTIONS ABOUT HEALTH HISTORY WORPKPLACE DISCUSSIONS:  There are not a lot of Genetic Information Nondiscrimination Act (GINA) charges or lawsuits pending, but GINA impacts the workplace in a different way.  (GINA) is- and should be- giving employers pause about workplace health history discussions.  Under GINA, it is illegal to discriminate against employees or applicants because of genetic information. GINA prohibits the use of genetic information in employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.  Few of us realize how easily an employer can acquire genetic information.  A recent SHRM article (found at:

http://www.shrm.org/LegalIssues/FederalResources/Pages/UnknowinglyAffected.aspx)  provides some good examples.  “Surprisingly, genetic information may be revealed when you kindly inquire about an employee’s family member who is suffering from heart disease, cancer or Alzheimer’s disease. Employers may also be surprised to know they can even obtain genetic information through publicly available sources, such as the newspaper or the Internet. A manager might see in the news that an employee is heading a local chapter of a lung cancer foundation, or see an obituary of an employee’s father who just passed away from a long battle with kidney disease.”  The article also contains some good tips on how to try to minimize the risk that an employer will inappropriately obtain and/or use genetic information in an employment decision.  It’s time for employers to get to know GINA.

AN INCREASE IN NONTRADITIONAL HARASSMENT?  National legal commentators are buzzing about what they call an increase in nontraditional harassment claims, i.e. claims other than a female accusing a male of sexual harassment claims.  Indeed, recent stats from the Equal Employment Opportunity Commission (EEOC) show an increase in claims and lawsuits involving: (1) same sex harassment; (2) females harassing males; and (3) religion and racial harassment.  Of course, your practices and policies should deal with nontraditional claims in the same manner as traditional ones.  However, the problem here may be that an employer is not as quick to recognize the potential problem of a nontraditional claim as it would be if a female employee was complaining about a male co-worker.  Don’t fall into that trap.

RECENT SUPREME COURT DECISION HITS THE MISLEADING SPD:  The United States Supreme Court recently issued a decision holding that benefit plan participants may be able to recover monetary relief if an employer’s summary plan description (SPD) is intentionally misleading. The cases involved lawsuits brought alleging that certain pension plans included intentional misrepresentations in the SPD.  For more details, check out this article: http://www.seyfarth.com/index.cfm/fuseaction/publications.publications_detail/object_id/71fcbe3e-298c-4a02-aba6-d4fe50a8b76a/SupremeCourtHoldsThatIntentionallyMisleadingSPDMayGiveRiseToClaimForMonetaryRelief.cfm

UTAH TO BEEF UP ITS E-VERIFY LAW?  Rep. Stephen Sandstrom of Orem, sponsor of some of last year’s Utah immigration reform laws, has indicated he is drafting legislation that would implement Arizona’s state E-Verify requirements here in Utah.  Utah law already requires that employers use E-Verify.  Essentially, the new proposed Utah law apparently would create severe enhanced penalties for Utah employers who violate federal laws in hiring undocumented workers, including the possible loss of a business license.  The United States Supreme Court recently ruled that this particular Arizona law was constitutional. Rep. Sandstrom hopes to have his proposed legislation ready for consideration during a possible September 2011 special session of the Utah Legislature.  For more information, see: http://www.sltrib.com/sltrib/politics/51900396-90/law-sandstrom-bill-arizona.html.csp

FLSA LAWSUITS BREAK RECORD:  According to statistics from the office that administers the federal courts, more lawsuits asserting claims under the Fair Labor Standards Act (FLSA) were filed in 2010 than ever before.  The number of such claims filed during the relevant time period in 2010 was almost 25% higher than for the previous year and was 278% higher than ten years ago.  FLSA requires payment of a minimum wage and overtime to nonexempt employees and regulates child labor issues.  Typical problems on these points include the failure to properly classify employees as exempt, the failure to include bonuses as part of overtime compensation, not paying nonexempt employees for working lunches and not paying for work done “off-the-clock.”  Of course, the best way to deal with a lawsuit in one of these areas is not to have one at all.  Thus, it may be time to double check your compliance efforts regarding each of these points and increase your comfort level that you will not be counted in the statistics, either in this or future years, as one of those employers defending a FLSA lawsuit. 

NEW DOL APP AIDS FLSA CLAIMS…OTHER APPS TO FOLLOW?: In a related note, the United States Department of Labor (DOL), which enforces FLSA, has launched an app (application) for smart phones allowing employees to independently track their hours.  The free app is currently compatible with the iPhone and iPod touch.  For more information, see: http://www.dol.gov/opa/media/press/whd/WHD20110686.htm  DOL also supplies less high tech apps (e.g. work calendars) to help workers to the same thing.  Jealous of the new DOL device, the Equal Employment Opportunity Commission now is developing an app for Droid phones that will instantaneously determine whether a touch on the shoulder (or elsewhere) is sexual harassment based on a reading of the relative body temperatures and pulses of nearby persons.  This “hostile environment reader” should be available by the early Fall of 2011.  For more information, please see: www.iamjoking.com

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.