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Earlier this year, we discussed the EEOC’s Strategic Enforcement Plan for 2013, and specifically the EEOC’s promised focus on “systemic age discrimination investigations.” Systemic investigations focus on companywide discriminatory practices affecting all employees statewide, regionally or nationally – as opposed to a single employee at a single location. A recently filed case against the EEOC by an employer reveals that the EEOC is now using employers’ own metadata and email servers, without notice to or knowledge of the employers, to alert employees to these systemic discrimination investigations and to solicit their participation as class action Plaintiffs or witnesses against employers.

In March, 2011, Case New Holland, Inc. (“CNH”) was notified that it (and 44 related companies) was the subject of a nationwide EEOC investigation into age discrimination. The EEOC requested production of the technical details of CNH’s software systems and components of its human resources data systems, including electronic files of employee employment and educational histories, performance, pay, terminations, etc. CNH voluntarily complied, producing reams of electronic data (including email addresses) for over 1300 current and former employees including management employees. Roughly 18 months later, over 1300 CNH employees received an email in their CNH email accounts from the EEOC advising them of an investigation into potential violations of federal age discrimination laws by CNH (even though there were no findings of such a violation), that their rights may have been violated by CNH (even though not a single employee had reported suspected age discrimination), asking them to complete a one-sided and biased questionnaire, and notifying them that federal law prohibited CNH from retaliating against them if they chose to cooperate with the EEOC. CNH knew nothing about, and never consented to, the EEOC’s hijacking and use of CNH’s email server. CNH recently filed suit against the EEOC, alleging that the EEOC’s solicitation of class action plaintiffs through the use of CNH’s email server was unconstitutional and violated the EEOC’s own administrative rules.

Should CNH have declined to voluntarily respond to the EEOC request for information? Probably, but it is far from clear that the result would have been materially different. The EEOC has broad administrative subpoena powers – much broader than would be allowed during a lawsuit - to force employers to produce information. Historically, courts have refused to restrict the scope of an EEOC administrative subpoena.

However, following recent stinging rebukes to the EEOC’s investigatory efforts – including a $4.7 million award against the EEOC in favor of an employer – the courts seem more willing to review the propriety of the EEOC’s use of its subpoena power. The Courts have restricted EEOC subpoenas to the particular facility at issue (as opposed to all facilities nationwide), and have quashed subpoenas in their entirety where the employer can prove that compliance would cause an undue burden in terms of cost and/or disruption of normal business operations.

In light of the EEOC new tactics, employers should consider: 1) challenging an overbroad EEOC subpoena, either through negotiations with the EEOC or administratively, noting, however, that there is a tight 5 day (excluding Saturdays, Sundays or Federal legal holidays) window to lodge a formal challenge; 2) producing electronic data in a format which will preclude it from being used to hijack servers and databases; 3) seeking an agreement or Court prohibiting the EEOC from contacting current or former management employees; 4) working with EEOC to develop an unbiased and non-suggestive questionnaire before it is submitted to employees.