Jottings By An Employer's Lawyer

Tuesday, May 30, 2006

Broad EEOC Administrative Subpoena Upheld -- But Where Are They Headed?

Last Friday as I was preparing for a leisurely Memorial Day weekend, the 8th Circuit was enforcing a broad EEOC administrative subpoena for the following:
(1) documents that show the name, immigrant status during employment, dates of employment, total actual compensation for each pay period, work history, and present work status for each person who worked as an electronics engineer, system analyst, or field service representative for any length of time between January 1, 2001 and the present (“work history information”); (2) copies of all documents submitted to and received from the Department of Labor (“DOL”) and the Immigration and Naturalization Service (“INS”) during the years 2001 through 2003 (“DOL and INS documents”); and (3) the complete contents of all personnel files and records pertaining to each Filipino employee present under an H-1B visa and employed at any time between January 2001 and the present (“personnel files”).
Bottom line, the EEOC gets it all. EEOC v. Technocrest, Inc. (5/26/06) [pdf].

If you are involved in a fight with the EEOC over an adminstrative subpoena, it's probably worth a read.

But even more interesting was the factual background. All of the company's technical employees were Filipino. According to the opinon:
The six charging parties charged that Technocrest illegally discriminated against them and Filipino employees as a class based on their Filipino national origin when they received less favorable treatment than promised after Technocrest recruited them from the Philippines to work in the United States. Specifically, the charging parties allege that they and Technocrest’s Filipino employees as a class were “subjected to wages less than or equal to the minimum wage, intimidated, and treated to less favorable terms and conditions of employment than promised.
It's not immediately clear to me where the traditional comparator is -- but the company's argument that the EEOC couldn't establish a prima facie case because all of its technical employees were Filipinos, was rejected as premature -- that's not the test for enforcement of an administrative subpoena.

The EEOC argument seems to stretch its traditional boundries of being tied to discrimination, but that is also the tenor of one of the latest MDV's: Pickle Verdict: Guilty: Judgment exceeds $1 million. (Technically from the news story, it appears this was a ruling by the court which would mean it is not really a verdict, but the money is still the same.) The defendant was accused of holding foreign workers, more than 50 men from India, as "virtual slaves." A district judge in Tulsa rendered the award. Although it was hailed as setting a national precedent in "human trafficking," again not normally the EEOC's territory, there was at least a mention of a comparison to treatment of American workers.

Actually, accepting at face value the allegations, both of these sound like worthy causes -- but so is finding a cure for cancer, which isn't part of EEOC's portfolio either.


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