California Labor &
Employment Law Blog

Aug. 12 2013

Employer Sues to Stop Overly Aggressive EEOC Investigatory Efforts

Topics: Discrimination, Harassment & Retaliation, Legal Information

Employers should be aware that, according to a recent lawsuit filed by an employer, the EEOC has engaged in a shocking new tactic as part of its “investigatory” power.  Specifically, under the guise of its “investigation” into a claim of alleged unlawful conduct on the part of the employer, the EEOC, without any advance notice, directly emailed over 1100 of the employer’s employees (at their employer’s email address) in an attempt to develop class members for a potential class action against the employer.

In response to the EEOC’s conduct, Case New Holland Inc. and CNH America LLC sued the EEOC on August 1, 2013 seeking injunctive relief and attorneys’ fees, claiming that the mass email interfered with its business operations, constituted contact with represented parties in violation of the Rules of Professional Conduct, and denied CNH the right to be present during communications with its employees.  The lawsuit further alleges that (1) no rule or regulation authorized the mass email, (2) the investigation was biased and violated statutory and constitutional rights, (3) the missive constituted a violation of the EEOC compliance manual, (4) violated the Fourth Amendment of the Constitution of the United States, and (5) violated the Fifth Amendment of the Constitution of the United States.

Employers should be concerned that even long after an investigation appears to have concluded, the EEOC could undertake such a tactic.  The Complaint alleges that the EEOC investigation of CNH commenced in 2011 and that over the course of the investigation, CNH cooperated by providing, among other things, approximately 5,707 pages of documents and over 600,000 electronic records to the EEOC.  The vast information was provided to the EEOC in January 2012 and, without any warning, about 18 months later on the morning of June 5, 2013, the EEOC made its direct contact with hundreds of CNH’s employees.  

If you are being investigated by the EEOC this could happen to you.  So once you learn of a potential investigation, engage counsel and press regularly for the termination of the investigation and conclusions reached by investigator.

About CDF

For over 20 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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