Here’s an important warning: If the EEOC mails your company a subpoena for information about a pending investigation, you have just days to object—or you’ll lose the right to do so. That’s why you absolutely need a clear process for immediately getting the subpoena to your attorney.
Recent case: When two former employees who had worked for Ayala Services filed EEOC complaints alleging that they had complained about sexual harassment and were fired in retaliation, the commission sprang into action. First, it sent the company several official Requests for Information detailing questions it wanted answered. Ayala didn’t respond.
Then the EEOC issued a subpoena asking for information about the two former employees, including details about how their complaints were handled and copies of Ayala’s sexual harassment policies and training efforts. It sought information about other employees who worked for the company around the same time and may also have alleged sexual harassment. In other words, the EEOC wanted to determine whether Ayala had a sexual harassment policy, enforced it and took action to stop and prevent further harassment.
The subpoena got no response, so the EEOC went to court. The judge said it was too late for Ayala to object to the subpoena. That’s because employers that do not intend to comply with an EEOC subpoena must ask the EEOC to revoke or modify the subpoena within five business days of getting it. (EEOC v. Ayala Services, No. 1:13-00032, ED CA, 2013)
Final note: Never ignore an EEOC inquiry; it won’t go away. Instead, immediately contact your attorney and let him or her guide you through the process. What you do during the early stages of an EEOC investigation can mean the difference between winning or losing a case.
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