Seventh Circuit Strictly Enforces Five-Day Period to Contest EEOC Subpoena

In a recent decision, the U.S. Court of Appeals for the Seventh Circuit strictly enforced an Equal Employment Opportunity Commission (“EEOC”) regulation requiring employers to file any objections to EEOC subpoenas within five business days of receipt. In EEOC v. Aerotek, Inc., No. 11-1349, 2013 WL 136013 (7th Cir. 2013), the Seventh Circuit held that Aerotek waived its right to challenge the enforcement of an EEOC subpoena because it missed this regulatory deadline by one day.

On September 21, 2009, the EEOC served Aerotek with a subpoena requesting 17 categories of documents from six Aerotek facilities, purportedly in conjunction with an investigation of two discrimination charges arising from a single Aerotek facility. On September 29, 2009, six business days after being served with the EEOC’s subpoena, Aerotek filed its objections in the form of a petition to modify or revoke the subpoena. On January 19, 2010, approximately 70 business days later, the EEOC denied Aerotek’s petition. A two-member panel ruled that Aerotek’s petition was untimely but agreed to modify two of the requested categories of information. Despite Aerotek’s subsequent production of almost 13,000 pages of information, the EEOC sued Aerotek to enforce the subpoena for seven outstanding requests.

The District Court for the Northern District of Illinois enforced the subpoena, and Aerotek appealed. On appeal, the Seventh Circuit affirmed the District Court’s decision. The court observed that, under 29 CFR § 1601.16(b), an employer who wishes to contest a subpoena must file a petition within five business days, and Aerotek did not offer any excuses for failing to meet that deadline. The court added that, one "conceivably could argue that we should distinguish this case from those where the respondents failed to petition for modification entirely, since here the petition was just late. But § 1601.16(b) makes no such distinction and we see no reason to make an exception based on the record before us."

Given the exceedingly short-time limit for contesting EEOC subpoenas and the court's strict enforcement of that deadline, employers should take steps to ensure that proper measures are in place to promptly review and, as appropriate, file a petition objecting to any EEOC subpoenas within five business days after receipt. The Aerotek case demonstrates that being late, even by only one day, likely will result in a waiver of the employer's opportunity to oppose the subpoena.