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CSI: HR
A criminal background-screening proposal that required a DNA sample raised an outcry sufficient enough for the university to rescind the requirement. The issue raises questions for HR leaders about balancing individual privacy and employer needs.
The University of Akron's policy to collect DNA for criminal background checks of job applicants appears to be DOA. The university's board of trustees recently adopted a rule saying a "DNA sample for the purpose of a federal criminal background check may be collected from any prospective faculty, staff or contractor." The College and University Professional Association for Human Resources says the policy is a first among colleges and universities. After some employees and external critics questioned the wisdom and legality of such a policy, the university backtracked, deciding to remove references to DNA testing from its recently revised criminal background check policy. According to university officials, the DNA sampling language now will be replaced with this sentence: "The [job] candidate may be required by the law enforcement agency to provide additional information which is needed by the law enforcement agency for the purposes of conducting the criminal background check." While university officials are not publicly commenting on the issue until after an upcoming board of trustees meeting, the university did provide background information to HREOnline TM emphasizing that "the purpose of the clause was to inform applicants that in the event of a federal criminal background check they may be required to provide fingerprints or a DNA sample to the law enforcement agency conducting the criminal background check. It was never the intent of the University to ask for or to receive fingerprints or a DNA sample." The DNA issue raises a number of questions for HR professionals regarding the balance between individual privacy and the needs of employers to gather information that may be relevant in the hiring process or when an employee is on the job. Legal Landmines Rebecca Siegel Singer, a labor attorney with Underwood, Perkins & Ralston in Dallas, says the university was wise to rescind the policy as it "raises a whole slew of potential legal landmines, from when and how to test what pool of applicants to ... who should have access to the information and how to safeguard the individual's privacy." Further, Singer says, the decision to scrap the policy "is prudent in view of a new federal law that takes effect on Nov. 21." That law, the Genetic Information Nondiscrimination Act is intended to eliminate discrimination based on the collection and dissemination of genetic information in both employment and insurance practices. Among other things, GINA prohibits employers from limiting, classifying and segregating employees based on genetic information as well as retaliating against persons who oppose such discrimination. For instance, Singer says, GINA prohibits an employer from excluding an employee from what is viewed as a particularly stressful job based solely on genetic testing that shows the employee has a propensity for high-blood pressure. In addition, GINA places recordkeeping and disclosure restrictions on employers. GINA would likely apply to a policy such as the one initially enacted by the university, Singer says. "Given the new landscape of potential liability under GINA, wholesale adoption of policies that allow for or require the use of genetic information in the employment context is not likely to be a trend that picks up tremendous steam in the near future," she says. Big Brother? That's good news to HR professionals such as Liz Kaufman of Fairfield, Conn.-based Keystone Consulting. Kaufman expressed concerns that the policy was akin to "Big Brother watching." "Simply put, this policy is scary," Kaufman says. "The fact is, a thorough background check with a reputable company, combined with drug screening, should give HR enough information to make an informed decision about a potential hire." Kaufman also points out that an organization would likely lose top talent or recruits who refuse to submit DNA samples on the privacy grounds. Indeed, at University of Akron, one adjunct professor quit and others threatened to leave if the policy remained in place. Johnny Taylor, former president of the Society for Human Resource Management and author of The Trouble with HR, says the policy not only posed potential legal issues, but also suffered from a communication and public relations problem from the start. "An employer requiring individuals to submit to DNA sampling without articulating a very good case is a textbook employee relations mistake," Taylor says. "Someone should've fully anticipated the public outcry resulting from the introduction of this policy and, in anticipation created a comprehensive HR, legal, and PR-crafted position statement." Taylor's advice for an HR professional working in an organization that might be considering a similar policy: Head quickly to the legal department to get an attorney's perspective on the potential pitfalls. "Assuming it passes legal muster, an internal team of HR, PR, and line managers should think through all of the public relations, employee relations and business-partner implications," Taylor says. Singer, the labor attorney, agrees. "Any employer considering adopting a genetic information policy should make sure to carefully craft the language within a broader non-discrimination policy that prohibits unlawful discrimination, including that based on genetic information," Singer says. "Caution and restraint are likely to be the standard in traversing this uncharted territory."
November 16, 2009 Copyright 2009© LRP Publications |
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