That moment right before the pain begins: an EEOC subpoena

Back in July, I blogged here about a federal appellate court recently emphasizing just how broad the subpoena power of the United States Equal Employment Opportunity Commission really is. [Editor's Note: the technical legal term is "crazazy broad"]

As I was hosting the weekly dip-spit distance shot organizing my office, I saw this opinion from the Third Circuit Court of Appeals which further underscored just how far and deep the EEOC's outstretched hand can go into your business.

Yeah, you, dude! The one who is not accused of discriminating against anyone, but who may have information relating to a pending EEOC investigation.

What's in store if you are on the receiving end of that subpoena?

As you probably know already, the EEOC investigates charges of discrimination to determine whether there is reasonable cause to believe that an employer has engaged in an unlawful employment practice. As part of its investigation, the EEOC will generally request documents and data from the accused employer. However, to investigate thoroughly, the EEOC may subpoena relevant documents from a third party.

Relevant? Sounds reasonable. Weeeeeeeell....tell 'em Third Circuit:

The relevance requirement is not particularly onerous. Courts have given broad construction to the term relevant and have traditionally allowed the EEOC access to any material that might cast light on the allegations against the employer.

And although the EEOC doesn't have "unconstrained investigative authority," the Third Circuit noted that "the concept of 'relevance' may change during the course of an EEOC investigation." Indeed, the "EEOC is permitted to pursue leads that arise during the course of an investigation even when that new evidence reveals 'a broader picture of discrimination' than the original charge." According to the Third Circuit, that's any evidence that would "cast light on" a discrimination claim. 

What all of this means is that as long as the EEOC can meet its relatively light evidentiary burden, an EEOC subpoena will be enforced.

So, if you are unlucky enough to receive one, my advice to you is get a lawyer, pour yourself a shot, and cooperate (in whatever order you prefer).

Lexis.com subscribers can access a Lexis enhanced version of the EEOC v. Kronos Inc., 2012 U.S. App. LEXIS 19320 (3d Cir. Pa. Sept. 14, 2012), decision with summary, headnotes, and Shepard's.

This article was originally published on Eric B. Meyer's blog, The Employer Handbook.

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