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Mark J. Girouard News Archive

Newsroom image for the post EEOC and DFEH Using EEO-1 Pay Data to Find Intersectional or Gender-Plus Claims

Posted March 3, 2021 with Tags

EEOC and DFEH Using EEO-1 Pay Data to Find Intersectional or Gender-Plus Claims

Employers that provided EEO-1 Component Two pay data to the Equal Employment Opportunity Commission (EEOC), or are currently preparing to provide data to the California Department of Fair Employment and Housing (DFEH) as part of California’s new pay data reporting requirement, are doubtless interested in learning how the agencies will use the data. One likely answer is that the EEOC and DFEH will use employer’s data to identify instances of “intersectional” pay discrimination. That is, claims of pay discrimination that involve the combination of two or more protected classes (such as race and gender), which are also commonly referred to as “gender-plus” claims (e.g., gender-plus-race).

Newsroom image for the post FAQs for Employers: Minneapolis’ Right to Recall Ordinance

Posted February 26, 2021 with Tags ,

FAQs for Employers: Minneapolis’ Right to Recall Ordinance

Minneapolis employers in the hospitality industry will likely soon have to contend with a new set of worker protection laws. The Minneapolis City Council is currently considering a citywide Hospitality Worker Right to Recall Ordinance, which would require employers to rehire workers previously terminated due to the Coronavirus pandemic. If adopted, the Ordinance will go into effect on May 1, 2021. Meanwhile, the Minnesota Legislature is considering a similar right to recall law, which would apply statewide to a larger group of employers.

Newsroom image for the post MN Supreme Court Upholds “Severe or Pervasive” Standard in Sexual Harassment Claims

Posted June 4, 2020 with Tags ,

MN Supreme Court Upholds “Severe or Pervasive” Standard in Sexual Harassment Claims

On Wednesday, June 5, 2020, the Minnesota Supreme Court issued its long-awaited decision in Kenneh vs. Homeward Bound, Inc., upholding the “severe or pervasive” standard applied to sexual harassment claims due to hostile work environment under the Minnesota Human Rights Act (MHRA). The standard, adopted from parallel federal Title VII litigation, has been applied to hostile work environment claims under the MHRA for over 30 years. It confines actionable sexual harassment to severe (meaning bad) or pervasive (meaning frequent) conduct that sufficiently alters the conditions of employment.

Newsroom image for the post Amidst Increased Video Interviews, Employers Must Keep Law in Mind

Posted April 7, 2020 with Tags , , ,

Amidst Increased Video Interviews, Employers Must Keep Law in Mind

Since shelter-in-place and self-isolation orders have become the norm around the country, more employers are utilizing video interview tools in lieu of interviewing candidates in person. These tools allow HR and hiring teams to continue to assess talent with little interruption. But Nilan Johnson Lewis labor and employment attorney Mark Girouard urges companies to keep certain legal requirements in mind before turning on the cameras.

Posted March 2, 2020 with Tags

Charting a Safe Course into Equal Pay “Safe Harbors”

The rising tide of state pay equity legislation shows no sign of abating, with several new laws set to become effective in 2020 and 2021. Many of these laws differ from the federal Equal Pay Act by defining comparable work more broadly, limiting the factors on which employers can rely to justify pay disparities, and imposing additional penalties. A handful of the laws also attempt to balance these new burdens on employers by creating “safe harbors” for those who proactively assess and address their pay gaps.

Posted October 4, 2019

EEOC Finds Age-Restricted Advertisements Violate ADEA

Approximately two years ago, a number of employers received charges of discrimination alleging that they discriminated against applicants by restricting the recipients of employment advertisements on Facebook. The EEOC just found reasonable cause on the first seven such charges; and more probable cause determinations seem likely in the near future. Employers who have not yet been targeted should take steps now to prepare.

Newsroom image for the post AI & “Algorithmic Bias” in Hiring

Posted June 11, 2019 with Tags , ,

AI & “Algorithmic Bias” in Hiring

As this Harvard Business Review article thoughtfully explores, artificial intelligence (AI) has the potential to decrease gender bias in hiring if it is properly trained and used...or to replicate existing workplace biases if it is not. With more employers using AI and other big data solutions in hiring, lawmakers and enforcement agencies, as well as plaintiffs' law firms, are increasingly focused on issues of “algorithmic bias.”

Posted May 28, 2019

Home Health Care Misclassification Lawsuits Rising

Plaintiffs’ wage-and-hour class action lawyers are constantly looking for new groups of employees whom they can claim are inappropriately classified as exempt. In previous decades, plaintiffs’ lawyers focused on mortgage adjusters, truck drivers, and assistant store managers. In 2019, plaintiffs’ lawyers are directing their attention to another group of employees: home health clinicians.

Posted May 21, 2019

Tech Support Independent Contractor Class Claims Climbing

Wage-and-hour class litigation tends to come in waves. In 2019, we are seeing another wave gather on the horizon: misclassification collective actions alleging that companies have improperly classified at-the-elbow (“ATE”) support workers as contractors and thus denied them the overtime required under the federal Fair Labor Standards Act (“FLSA”) and parallel state laws.

Newsroom image for the post Candid Job Applicant Feedback: A Cool Favor That Can Put You in Hot Water

Posted April 17, 2019

Candid Job Applicant Feedback: A Cool Favor That Can Put You in Hot Water

For employers turning down applicants, frank feedback hasn’t exactly been standard protocol. Historically, employers have used boilerplate rejection letters, or simply silence, to turn down applicants. Yet whether it’s due to shortages in talent, generational changes in the workforce, online …

Newsroom image for the post Appellate Court Rules that Age Bias Disparate Impact Theory Pertains to Employees, Not Applicants

Posted January 25, 2019 with Tags , , , , ,

Appellate Court Rules that Age Bias Disparate Impact Theory Pertains to Employees, Not Applicants

The 7th Circuit Court of Appeals ruled on January 23, 2019, that assertions of age discrimination arising from facially neutral hiring policies can be brought only by a company’s employees, not by job applicants. In Kleber v. CareFusion Corporation, the court agreed with recent rulings by other courts – most recently the 11th Circuit Court of Appeals in Villareal v. R.J. Tobacco Co. – holding that under the federal Age Discrimination in Employment Act (ADEA), only employees can state a claim that a company’s actions or policies resulted in an unlawful “disparate impact” due to age.

Newsroom image for the post Employers Should Immediately Review Recruitment Ad Practices Due to Facebook Class Litigation

Posted January 17, 2019 with Tags , , ,

Employers Should Immediately Review Recruitment Ad Practices Due to Facebook Class Litigation

A little over a year ago, three major employers—T-Mobile, Amazon, and Cox Communications—were sued for allegedly discriminating on the basis of age in the way they recruited new employees via Facebook. The plaintiffs’ lawyers targeted not only these three employers but also asserted claims against a “defendant class” of every employer that used age restrictions in their recruiting advertisements on Facebook. They also sent demand letters to scores of employers and filed charges of discrimination against yet more. Though the lawsuit and charge investigations are ongoing, the plaintiffs’ lawyers are now sending a new wave of demands to more employers and filing more charges of discrimination with the EEOC and state enforcement agencies. Employers who have not yet been targeted should take steps now to prepare.

Posted December 13, 2017 with Tags ,

One Resolution Employers Don’t Want for the New Year

Heightened by an increase in social activism and the #metoo movement, many publically traded companies – especially those in the technology and retail sectors – may find themselves facing a New Year’s resolution they’d rather not have in 2018: a shareholder resolution demanding public disclosure of detailed information about gender pay differences.

Posted November 18, 2016

Webinar: Machine Learning and Big Data Analytics for Hiring

Increasingly, today’s employers rely on big data solutions—from resume screens to social media search tools—to source, recruit, and hire employees. While big data has the potential to reduce recruiting costs and streamline hiring, these tools also present a host of legal and other business risks. For example, a seemingly neutral algorithm could actually create or perpetuate discrimination based on protected characteristics. Before implementing these tools, employers need to understand how big data impacts the candidate selection process and how to recognize hidden risks that may exist.

Posted April 25, 2016

2016 Upper Midwest Employment Law Institute

Employment law attorneys Joe Schmitt and Mark Girouard will be speaking at the 2016 Upper Midwest Employment Law Institute on May 23 & 24, 2016. The Institute, sponsored by Minnesota CLE, will feature two full days of comprehensive sessions exploring the latest in employment law. In addition to a speaking role, Joe has been part of the planning team for this event.

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