THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S BROAD THIRD-PARTY SUBPOENA POWER

An employer’s dealings with the EEOC typically stem from an administrative charge filed by a current or former employee. However, businesses are sometimes hit with an unexpected, nettlesome, and costly surprise: an EEOC third-party subpoena. The EEOC has the power to issue subpoenas to third parties, meaning it can order them to produce documents and records in connection with an agency investigation or litigation of a discrimination charge filed against another company. Most vulnerable are companies that provide some type of service to employers as a vendor (e.g., testing companies, staffing companies, and background check companies).

The EEOC’s investigative subpoena power is governed by Section 161 of the National Labor Relations Act (NLRA). When a third party receives an EEOC records subpoena, it has only five (5) days to respond with a written petition or objection seeking to revoke or modify the subpoena.  Obviously, time is of the essence: a company and its legal counsel must act quickly to prevent an argument that objections to the subpoena have been waived.

If the third party decides to file a petition challenging the subpoena, the EEOC must to go to a federal district judge to enforce the subpoena. If the EEOC’s third-party subpoena is issued in the course of litigation, the request is governed by Fed. R. Civ. P. 45, and the third party has up to fourteen (14) days to object unless the date by which documents must be produced is sooner.

The scope of an EEOC subpoena issued to a third party can be staggering, particularly if the agency is pursuing a companywide or systemic investigation or litigation against the employer that’s the subject of the underlying EEOC charge.  Such a subpoena can impose a substantial burden on a third party.

For even the narrowest of subpoenas, retrieving and producing the requested documents requires an investment of time and money. Such requests often involve electronic records; responding to requests for electronically stored information can be a cumbersome and time-consuming task. Additionally, many of the documents or other records may contain confidential information, such as trade secrets or even medical information.

Bottom line

The EEOC has broad subpoena power over third parties, and time is of the essence when you’re faced with a subpoena—particularly if it’s an administrative subpoena.  Third parties to EEOC charges should be careful to timely object to or comply with subpoenas to avoid being held in contempt.

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