Modern Employment Law [Part 1]
by Greg R. Mansell
Advancements in Technology Expose Employers and Employees to Increased Risk
The twenty-first century has seen a continual and unprecedented growth of technology from advancements in medicine to the creation of social networking sites that seamlessly link individuals around the globe. The benefits of this continued growth are limitless: early detection of health risks through genetic DNA examination, inexpensive yet drastically global advertising through social media and networking sites, instant access to information through the click of a button on your computer, iPad or smart phone. Indeed, these benefits are well known to most individuals because they are widely promoted and publicized. Unfortunately, there is rarely good without some bad. Advancements in technology create several risks to employers and employees that go unnoticed by the majority of the population. Employers and employees should be educated and aware the underlying risks and liabilities that accompany these increases in technology. Continuous and assertive preventative policies and education on these topics will allow employers and employees to avoid the endless possibility of risks. This effort must be constant and assertive to keep up with the rapidly growing technological era. Genetic testing, unauthorized employees and social networking sites are among the most prominent topics affecting employment law today.
Genetic Information Nondiscrimination Act (GINA)
Genetic testing, through the examination of DNA molecules, allows medical personnel to detect diseases and conditions significantly sooner and more accurately than when normal symptoms would trigger diagnosis or examination of the patient’s health.1 The benefits of genetic testing are obvious and substantial: earlier awareness of the condition allowing for earlier treatment; clarification of diagnosis allowing for more appropriate treatment and identification of those with a higher risk to establish preventative measures to avoid those health conditions.2 Although the benefits are many, the availability of genetic information opens the door to potential employer discrimination against employees or potential employees based on this information.4 In an effort to circumvent these unfair practices, the federal government passed the Genetic Information Nondiscrimination Act (GINA).3 GINA is a Federal law prohibiting discrimination in health insurance and employment based on genetic information.5 As of yet, most claims with the EEOC concern the acquisition of genetic information, rather than assertions of an actual adverse employment action based on that information.6
However, cases of the latter are starting to present themselves. Thus, employers must consider ways to not only avoid employment decisions based on an employee’s genetic information, but more broadly, employers need to develop a comprehensive policy and educate staff to avoid obtaining this information on behalf of the employer.
Unauthorized and Illegal Employees: E-Verify
As the world becomes more globalized, issues of illegal immigration and unauthorized employees become more problematic. In 1952, the government enacted the Immigration and Nationality Act (INA).7 In 1986, the INA was amended to prohibit the hiring or continued employment of aliens when employers know that the aliens are unauthorized to work in the United States.8 With this amendment, a document-based system was created to verify potential employees are authorized to work in the United States.9 With growing technology, the Department of Homeland Security with the Social Security Administration, introduced the E-Verify system on the Internet, which instantly allows employers to electronically verify authorization of potential employees. More than 238,000 employers now use E-Verify.10 Over 1,400 companies enroll in the program each week.11 In 2011, the Supreme Court confirmed that states may mandate the use of E-Verify.12 Ohio, through House Bill 286, is attempting to follow in Arizona’s footsteps. However instant and beneficial the technology, the program is not without risk and some disadvantages. Employers must consider the liability risks involved with E-Verify, which includes signing a Memorandum of Understanding.13 Additionally, E-Verify presents disadvantages to both employers and potential employees, including the potential of inaccurate results delaying employment and adjustments for Human Resources departments.