Reminder: Employers Must Challenge an EEOC Subpoena Right Away

The EEOC has very broad powers of investigation. Title VII provides that, in connection with an investigation of a charges, the EEOC “shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.”

Where an employer does not voluntarily provide information in response to an EEOC request, the EEOC has the power to issue an administrative subpoena demanding the production of the requested information. If an employer has a basis to object to the subpoena, such objection must be made, via a petition to the EEOC, within five (5) business days, or the employer waives their objections to the subpoena (with a few very narrow exceptions). The employer in a recent case from the Seventh Circuit Court of Appeals learned the hard way that 5 days is all the time an employer gets when the employer  filed their petition on day 6, and the Court ruled that their objections were untimely and required them to comply with the EEOC subpoena at issue.  EEOC v. Aerotek, Inc., 2013 U.S. App. LEXIS 867 (7th Cir. Ill. Jan. 11, 2013).

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