EEOC Asserts Right to Blast E-Mail Entire Workforce at Work and at Home

By Scott J. Wenner

Responding to a lawsuit filed against it in federal court in Washington, D.C., the Equal Employment Opportunity Commission is defending its attempt to expand its investigatory authority to a dangerous and intrusive new level.  Case New Holland, Inc. (CNH) has challenged the EEOC’s use of work and office e-mail addresses of hundreds of employees, including managers, to collect information during work hours to use against CNH in investigating a charge of discrimination.

CNH brings its claims against the EEOC under the Administrative Procedure Act and the Fourth and Fifth Amendments of the U.S. Constitution.  To support these claims, CNH argues that the EEOC violated its Compliance Manual, which regulates the activities of its personnel, when it bypassed CNH and contacted CNH managers directly. CNH also argues  that the EEOC’s actions violated  Rule 4.2 of the Pennsylvania Rules of Professional Conduct, which  prohibits a lawyer from communicating about the subject of the representation with  a person  the lawyer knows is represented by another lawyer in the matter without the consent of the other lawyer.   According to CNH, EEOC lawyers in Philadelphia knew that CNH was represented and nevertheless approved the EEOC’s sending e-mails directly to CNH managers.

Background

According to the Complaint, the EEOC requested and CNH produced hundreds of personnel files in connection with the EEOC’s companywide investigation relating to a charge of age discrimination. Those files contained personal and company e-mail addresses of CNH employees.  Eighteen months later,   and without notice to CNH, the EEOC sent e-mails at the start of a workday to 1300 e-mail addresses of CNH managers and other employees that attached a link to a questionnaire developed by the EEOC.  CNH claims that the questionnaire was confusing and biased, and improperly suggested responses to questions that were adverse to CNH’s interests.

The Complaint adds that the EEOC’s covering e-mails misled its employees by, among other things, labeling its activity as an “official investigation” and a “federal investigation,” and creating an impression that its employees were required to provide information in response. CNH charges that the agency’s tactics were used to improperly solicit potential class action plaintiffs.  The lawsuit seeks a declaratory judgment that the EEOC’s tactics are unlawful and a permanent injunction against further such action.

The EEOC has moved to dismiss CNH’s complaint on the grounds that its challenge is premature as no final agency action has been taken, and that CNH will not suffer any harm if the propriety of the EEOC’s actions is not reviewed at this time. The motion is awaiting decision.

Discussion

If portrayed accurately by CNH, both EEOC’s tactics and its defense of them in the litigation are troubling, and should lead prudent employers to take precautions during EEOC investigations not previously thought to be necessary.

Although the agency’s Compliance Manual does not explicitly prohibit direct contact with managers or use by an investigator of a company’s computers, servers and network to send blast e-mails adverse to the company’s interests without its consent, such acts are entirely inconsistent with the agency’s guidelines for its investigators.  Section 23(a) of the Manual states that “[o]n site interviews should be conducted with the prior knowledge and consent of the respondent” and adds that the employer should be notified of those to be interviewed by the agency on-site either beforehand or at the time of the interview.  Further, section 23(c) refers to the “right” of an employer’s witness – i.e., a manager – to have counsel or a spokesperson present.  It adds that if the employer refuses to cooperate in making non-management witnesses available for interviews, those witnesses should be contacted at their homes.  Nothing in the Manual suggests that investigators should contact employees directly at work, much less during work time.

Indeed, anyone who has worked with employers during EEOC investigations, whether in a legal or human resources capacity, should be well aware that the agency historically has respected the right of employers to manage their places of business with minimal disruption, to decide whether and when EEOC representatives can interview non-management employees on site and during paid work time, and to ensure that their managers, whose statements, after all, can bind the company, have counsel present to protect them and their employer.  By both word and deed the EEOC has always led employers to believe that their rights would be respected when they voluntarily opened their doors to EEOC investigators.

While the apparent actions of the investigator in the CNH matter were surprising because they were so extreme and unusual, the EEOC’s posture in defending them unflinchingly is even more of a surprise for its seeming short-sightedness.  It declares in its motion papers: “This lawsuit is nothing more than an attempt by Plaintiffs to impede and thwart EEOC’s investigation of their employment policies and practices under the ADEA.”  It nowhere squarely acknowledged its investigator’s action, instead repeatedly characterizing it in minimalist terms – e.g., he “proceeded to initiate communication with some of these [employees]”.  And, by understating its investigator’s tactics, it ignores decades of agency practice by portraying them as nothing unusual – after all, it says, the EEOC is authorized by regulation “to question employees and applicants, gather data, and conduct interviews.” It broadly insists that its investigative choices under the ADEA are not reviewable action, and invokes the slippery slope that would be created were the court to intervene.

The agency tactics attacked in the CNH lawsuit unsurprisingly have garnered pages of commentary, expressions of outrage by business groups and efforts by organizations to file briefs supporting CNH’s position.  Some have speculated that the agency’s tactics were an overreaction to a string of high profile losses the agency has suffered recently, including the dismissal of its first two actions challenging the use of criminal background and credit checks to screen applicants, and the imposition of record breaking sanctions against the agency for bringing an action on behalf of a class of employees without conciliating their claims, or even being able to identify in discovery the purported class members on whose behalf it was suing.  Others suggest that the agency has changed tactics and is emulating its currently more militant cousin, the NLRB, in upsetting the old order.

Whatever the reason, it is difficult not to view the EEOC’s defense of the investigative tactics employed at CNH with alarm, and as a cautionary tale that must prompt increased vigilance on the employer side of EEOC investigations going forward.  The agency’s apparent lack of respect for the concepts of paid company time and company property certainly suggests that company e-mail addresses should be redacted from records produced to the EEOC during investigations.  More broadly, however, the agency’s apparent willingness to deny a history of investigating within mutually understood and accepted bounds that promised to minimize disruption and loss of productivity for employers, and that permitted the EEOC’s investigators to do their jobs more efficiently, suggests an agency view that established norms no longer apply.  Thus, it may be left to employers and their counsel to establish the rules of an EEOC investigation with the agency on a case-by-case basis.

Ironically, it might be best for both employers and the EEOC were CNH to prevail in its action against the agency. If the EEOC’s position is as short-sighted as it appears, a restoration of greater certainty, and an assurance that the agency cannot disrupt workplaces, reduce productivity and coopt company property without notice or consent, could tamp down the suspicion and resistance aroused by the tactics it employed against CHN, and by its defense of those tactics.