Employer Sues to Stop Overly Aggressive EEOC Investigatory Efforts
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.