Katz, Marshall & Banks senior counsel Carolyn Wheeler was quoted in a Law360 article, “Employers Who Fight EEOC Subpoenas Face Uphill Battle.” Following the Supreme Court’s April 2017 McLane v EEOC ruling that limited court review of the EEOC’s information bids, a number of court cases have reaffirmed the agency’s power to enforce subpoenas for information it believes is relevant.
Rulings out of the Central District of California and the Northern District of Texas have been “as receptive to the EEOC’s arguments… as the EEOC could wish,” explains Ms. Wheeler. These outcomes work hand-in-hand with the agency’s newfound enthusiasm for pursuing cases that could potentially affect a class of workers.
The use of subpoenas to develop class claims can be traced in part to the Eighth Circuit’s 2012 ruling in EEOC v. CRST Van Expedited that largely dismissed the EEOC’s suit, because it brought broader allegations in court than it had previously investigated. The EEOC learned its lesson, says Ms. Wheeler. “Since then, the EEOC has used its subpoena power a little more aggressively whenever it might have that kind of class case, because it can and it should.”
Despite the recent courtroom defeats, businesses will likely continue to fight the agency’s subpoenas, and hand over nothing more than what is required.
Find the full article here.