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Employment Privacy Blog

News, commentary, and legal updates from attorneys in the Data Security and Workplace Privacy Practice Group at Fisher Phillips.

The average internet user may be largely unaware that there are actually different “levels” of the internet.  First, there is the surface level of the internet where companies post their webpages, and where employees may browse the news, shopping options, and Facebook.  The surface level means that the internet is indexed, and can be accessed using a search engine such as Google.  There is also the Deep Web, which means that the web pages cannot be accessed by a search engine because they are not indexed.  In other words, you would not be able to search for or stumble upon these websites.  Instead, you’d only be able to access them if you knew their exact web address.  What may surprise people is that most of the internet today is actually considered part of the Deep Web.  Next, there is the Dark Web, whose very name sounds a bit ominous.  The Dark Web is a part of the Deep Web, but it also requires special browsers, such as TOR, and configurations in order to access it.  The primary goal of the Dark Web is to maintain privacy and anonymity.  While some may use this area for perfectly legitimate purposes, such as a journalist speaking to a source in private, not surprisingly, this setting can also be exploited for illegal purposes, such as drug and human trafficking and child pornography. 

On May 16, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued regulations governing the treatment of wellness programs under the Genetic Information Nondiscrimination Act (“GINA”), as well as under the Americans with Disabilities Act (“ADA”). The rules regarding financial inducements began applying to employer-sponsored wellness programs as of the first day of the first plan year that began on or after January 1, 2017. This move led to a legal challenge by the AARP regarding whether the financial incentives provided for in both laws was consistent with the notion of voluntary participation. The United States District Court for the District of Columbia agreed with the AARP, and on August 22, 2017, just a little over a year after the regulations went into place, the court held in AARP v. United States Equal Employment Opportunity Commission that incentives and penalties up to 30% of employee health care costs are inconsistent with the “voluntary participation” requirement under both the ADA and GINA.

The Equal Employment Opportunity Commission recently issued final regulations regarding employer wellness programs under GINA and the ADA.

The Genetic Information Nondiscrimination Act (“GINA”), is a federal law enacted in 2008 which prohibits employers from requesting “genetic information” from their employees. Specifically, it prohibits employers with 15 or more employees from discriminating against an employee on the basis of the employee’s genetic information. “Genetic information” includes information from genetic tests, the genetic tests of the ...


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