EEOC Sued For Loss Of Worker Productivity As A Result Of Unannounced Widespread Workplace Interviews

Nicholas Fortuna, November 11, 2013.

Case New Holland, Inc. (CNH) sued the U.S. Equal Employment Opportunity Commission (EEOC) claiming it stole employee work time and violated the Fifth Amendment’s taking clause. The action complained of is that the EEOC sent out more than 1,300 emails to CNH’s employees and business accounts in an effort to drum up plaintiffs and evidence for a potential class action against the company. The email sought information regarding discrimination “against job applicants and current and former employees from January 1, 2009 to present.” The email pertains to an investigation launched in March 2011 into alleged age discrimination by CNH and its affiliated businesses. The company alleges that the EEOC gave no notice of the email blast and in addition to being a violation of the Constitution; it violated its own administrative rules. The lawsuit seeks an injunction that would prohibit the EEOC from using any information it gathered through the mass email. The case is pending in the D.C. federal court before Judge Reggie Walton.

The argument asserted by CNH is that it has a property interest in the time and work product they compensate employees for and that the EEOC’s actions amounted to a “taking” of that time.  Further, CNH alleged the EEOC harmed business operations by sending 1,330 “unannounced workplace interviews” of its employees. The email did not specify that the inquiry was limited to age discrimination and that no finding of discrimination had yet been made.

The EEOC has filed a motion to dismiss the suit. It argued that the email falls within the agency’s investigatory power to communicate with employees. Additionally, “investigations by federal agencies may disrupt the process of normal business operations, but this is the cost of doing business and does not result in a cognizable harm.” The National Association of Manufacturers filed an amicus brief in support of CNH. EEOC’s motion to dismiss has not yet been decided.