Thursday, October 24, 2013

“You’ve Got (Mass) Mail”…From the EEOC?

In an ironic reversal of roles, on Monday October 21, 2013, the Equal Employment Opportunity Commission (“EEOC”) asked a federal District Court in the District of Columbia to dismiss a lawsuit filed against the agency by an aggrieved employer. The lawsuit alleges the EEOC unconstitutionally solicited or “trolled” the company’s employees to become class members in a potential age discrimination class action. (Case New Holland, Inc. and CNH America LLC v. EEOC et al., Civil Action No. 1:13cv1176).

The suit claims the EEOC violated the law by sending a mass e-mail, utilizing the company’s business e-mail domains, to over 1300 management and non-management employees, requesting the employees complete a survey and supply evidence of discrimination against the employer.

For employers more familiar with the typical EEOC procedures associated with a Charge of Discrimination, the mass e-mailing and request for information, without any notice to the company, raises some serious red flags.

The facts of the case are as follows. In March 2011, the EEOC notified CNH America, LLC (“CNH”) that it was launching a nation-wide review of the company for alleged violations of the Age Discrimination in Employment Act (“ADEA”). The company employs approximately 10,000 people in the United States. The EEOC made a sweeping request for information and documents.

According to the lawsuit, in January 2012, the company produced to the EEOC 300 documents totaling 5,707 pages and over 600,000 electronic records from CNH databases, totaling 66,630 pages of documents. After complying with the agency’s request, the company received no communications of any sort from the EEOC until June 5, 2013, eighteen months later.

At 8:00 a.m. on June 5, 2013, the EEOC conducted a mass e-mailing to the business e-mail addresses of 1330 CNH employees across the United States and Canada. Over 200 of the recipients were members of management. The e-mail stated the EEOC was conducting “a federal investigation” and making “an official inquiry” into allegations that CNH discriminated against job applicants and employees, and contained a link to an on-line series of questions. It also asked for the employee’s birth date, address and telephone number. The EEOC’s on-line survey instructed CNH employees to “Please complete and submit this electronic questionnaire as soon as possible.”

The e-mail had been sent without any advance notice to CNH and according to the lawsuit, the mass mailing disrupted CNH’s business operations at the start of the work day and communicated to employees they should cease their legitimate work duties and instead immediately respond to the agency’s questions. A significant concern was the company’s belief that the EEOC had deliberately cut the employer out of the investigatory process, and had solicited members of management, whose statements arguably could have bound the company.

CNH filed its lawsuit on August 1, 2013, alleging that the EEOC’s mass e-mailing: (1) was not authorized by any EEOC rule or regulation, (2) violated the federal Administrative Procedure Act, (3) constituted an unreasonable search and seizure in violation of the Fourth Amendment, (4) violated the takings clause of the Fifth Amendment, and (5) violated the EEOC’s own compliance manual, which requires that an employer be allowed to have a spokesman or attorney present during an interview of management employees, and that advance notice be given. The suit claims the EEOC engages in bullying tactics to force companies into monetary settlements of questionable claims.

The lawsuit seeks a permanent injunction prohibiting the EEOC from soliciting CNH employees by e-mail, and additional injunctive relief to prevent the EEOC from utilizing any of the information obtained through the mass e-mailing. The lawsuit claims:

"The EEOC has never, before June 5, 2013, sent out emails through business email servers, without any prior notice to the respondent employer, in an attempt to unearth plaintiffs against the employer"

On October 21, 2013, after some extensions granted by the District Court, the EEOC responded with a Motion to Dismiss. While addressing CNH’s various claims, the EEOC’s primary argument was that the case should be dismissed because the District Court lacked subject matter jurisdiction to consider CNH’s claims because it was not a “final agency action”, and that the EEOC’s actions were within the agency’s investigative authority. Additional briefing by the parties will take place before any ruling.

I am not going to try to “read the tea leaves” as to how the District Court will ultimately rule in this case, but a few things are worth noting. First, the EEOC has been less than successful lately when it comes to telling U.S. District Judges what their authority is in regard to the agency. You’ll recall in a recent posting, I discussed the EEOC’s recently stated position that the agency’s conciliation efforts with employers, or lack thereof, were not subject to review by the federal courts. As noted in my article, the EEOC subsequently received a severe slap-down by a U.S. District Judge in Texas. The EEOC also has recently found itself subject to significant monetary sanctions by federal courts for some of its investigatory and litigation tactics.

Second, this extremely aggressive approach by the EEOC should concern employers because it seems to be a deliberate effort to cut employers and their legal counsel out of the investigatory process. The EEOC has always had the investigatory right to interview non-management employees without an employer representative or attorney present. However, because a statement by a member of management could be considered a binding admission on the part of the company, an employer is entitled to have legal counsel present for such interviews. It’s very easy to envisage a manager being cowed by a very official and intimidating e-mail into providing information, unbeknownst to the employer.

Third, heavy handed tactics, such as the mass mailing to the CNH employees described in the Complaint, or other EEOC actions that have caught the attention of the federal courts and resulted in sanctions, could conceivably result in blowback for the agency. This might include congressional action to limit the EEOC’s authority.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at