Do You Want Employee DNA?

Our DNA is what makes each of us unique.  It also holds secrets.  It can tell us where may suffer from breast or colon cancer, where our ancestors are from, and what eye color our kids could have.  All of this is very, very cool.  But do we need to know our employee’s DNA?

Congress took action in 2008 to prevent DNA and family medical from getting into the hands of employers.  When the Genetic Information Nondiscrimination Act (GINA) passed in 2008, well over 90% of the House and Senate voted in favor.  GINA prevents employers from obtaining and using this information to make employment decisions.  The EEOC enforces GINA, working to prevent harassment, discrimination, and even retaliation.  With a bill currently before Congress, some of this could change.

As Jon Hyman recently explained, Congress is considering a bill that will allow employers to ask for personal and family medical histories, including DNA, provided the employee gives the information voluntarily.  If the employee refuses, he could not receive the 30% premium reduction incentive.

Imagine what a devil-on-a-shoulder of an employer could say if it had employee DNA and family medical histories.  “Don’t promote (or recognize) her, she’s got BRCA1, and her mom died of cancer.  She’s too expensive.” Or when a shoulder devil learns about an employee with a special needs child who has had several heart surgeries.  “Uff. That family’s health care costs are too high.  He’ll probably need so much time off and cost us a lot.”  While I’d like to believe this wouldn’t happen, it is exactly what plaintiff attorneys suspect will happen.

There already are services that can help reduce health care costs using employee DNA.  Take Newtopia.  Newtopia matches employee DNA, a fitness tracker, dietary log, supplements, and personalized coaching to reduce employer health care costs.  According to Newtopia, it really works.  For one employer, Newtopia’s program saved an employer over $1,400 per employee per year.  That’s a lot.  Something some employers can’t ignore when health care costs are skyrocketing.

Yet, we don’t want our employer to have our DNA.  I recently used Newtopia’s marketing video in a presentation to 30 HR executives.  When I looked at their reactions, several had their mouths agape.  I get the same reaction when I share this information with employment attorneys.  They know that employee DNA is sensitive and could create problems.  One, that many of them don’t want.

Empathy & What To Do About It

The last few weeks, I’ve spent a large chunk of my time talking with HR teams about politics.  It is hard not to talk about politics these days.  Politics can (and have been) all consuming lately.  Research has shown that companies that take a political stance benefit while others feel they need to be silent.  We’re seeing the politics of the pocketbook for certain brands for some consumers.  Regardless of your organization’s stance, there is one thing that HR pros and their organization need to do.  Show empathy.

There are two main reasons empathy is key.  One is that it is good for business.  Recent research has shown that when managers show empathy, employees are more engaged and business improves.  Listening to employees, understanding their needs, and responding to those needs create employee loyalty and strong employer brands.  Not showing empathy could spell disaster.

The second reason is that we all need a little empathy right now.  For many, these are scary times.  It is important that we see each other, hear each other’s concerns, and while we may not always agree, we still have to acknowledge the feelings of others.  And, the feelings are strong and deeply, personally felt on both ends.  The polarization of the world affects the workplace.

A good example is the Ninth Circuit Court of Appeals’ decision last night on the immigration Executive Order.  Some employees may have done a little dance while others may have feared a terrorist attack is now imminent.  But both sides need to work together.  In situations like this, employers should:

  • Allow the event to happen. Don’t block outside internet sites, turn off the news in the cafeteria, or strictly enforce bans on personal smartphone use.  Allowing employees to know what is going on will help later in this process.
  • See all your employees. If you have some HB1 holders, they are likely fearful.  Other employees may be championing the new administration.  You can’t listen to employees if you don’t know who they are.
  • Hear your employees. Talk with your HB1 holders and express your commitment to them.  Minority employees may be more cautious in the workplace.  Ask for their input, their voice is important to your success.  Understand that both sides exist in your workplace, hear them out because if you don’t, the slow, unacknowledged simmer will eventually boil over.
  • Allow employees to express themselves. But their expression doesn’t mean they get to cause disruption or otherwise hurt the company.  Don’t terminate employees for participating in protests provided they don’t do so while representing the organization.  Employees can feel strongly and march against XYZ, just maybe not in a company t-shirt.  Posting signs that could enflame feelings can be taken down.  Respect should rule the day in the workplace.
  • Everybody works together. A DJT voter works with a Hillary voter.  Your company’s mission – whether it is crafting the best wingnut to saving the whales – wins out every time.  If employees can’t work together or refuse to do so, they are not helping the company do what you do.  If reminding employees about this doesn’t work, then it may be time they move on.

Empathy is a secret sauce in an organization, because it is hard.  But it is worth it.  Listening to employees prevents resentment that can turn into litigation.

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HR Technology: A Pledge

It’s no secret I love technology.  I order Apple products at midnight, I try all sorts of widgets and gizmos, and I regularly speak on the impact of technology in the workplace.  Technology can do some amazing things.

What technology brings to the workplace is both awesome and downright creepy.  Employers can have employees turn in DNA samples to get a customized wellness program, seize the power of analytics to source candidates over the interwebs, and monitor employee engagement through badging technology.  All of these uses come with a proven and legitimate return on investment for an employer.  However, for each HR department who purchases this technology, an employment attorney loses an hour of sleep.

For example, the DNA-testing wellness program described above saved one employer over $1,400 per employee.  That’s nothing to shake a stick at.  Yet, the program screams Genetic Information Nondiscrimination Act violation.  Under GINA, employers are prohibited from requesting genetic information from employees and their families. So if an employer requests a DNA sample in hopes that eventually health care costs go down, does the employer violate GINA?  In pure lawyer-speak, it depends.  Is the wellness program truly voluntary under EEOC regulations?  Can the third-party wellness vendor make the request and keep the genetic and other health information from the employer?  Can the employer reap the benefits without getting any health information from the employee?  If the answers to these questions are yes, we may be able to implement the program in a GINA-compliant way – reap the benefits and minimize risk.

Analytics provide another great example.  Xerox reduced customer service representative attrition by 2o percent by using analytics!  That’s so cool.  But analytics can be inherently discriminatory.  An algorithm discriminated against minority beauty pageant contestants.  The bot Microsoft tested on Twitter turned into a Nazi in less than 24 hours.  What does this mean when we turn these technologies loose in HR?  Will we able to avoid discrimination and potential biases?  Will the correlations analytics find be job-related and business necessity or will other factors and doctrines apply?  Will we have the records available to protect an employer?  These are considerations every HR department should think about before finding a big data solution because these risks are real, and the EEOC is paying attention.

As both an employment attorney and a technology aficionado, I get the conundrum that employers face.  You want the benefits, not the risk.  If you don’t adopt the technology, you may not be as competitive because your competitors are using this tech.  The cost-benefit analysis may favor the purchase and the results, but before you make the purchase, are there ways to make the tech just a bit safer, reduce the risk even a little?  I think so.

So here’s my pledge:

I solemnly pledge I will never say no to implementing new technology, strategy, policy, or process with a legitimate return on investment.  What I will say (and do) is help your organization put a metaphorical seat belt or airbag on the new stuff to better protect the organization should questions (and litigation) arise later.  A safer policy, piece of technology, or process is a better one.

If an employer had zero risk, it would have zero employees.  When employers implement new technology, they take on even more risk.  Let’s talk about minimizing that risk.