Something Stinks About EEOC’s ‘Onionhead’ Enforcement

March 2, 2015Articles Law360

Reprinted with permission from Law360. (c) 2014 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.

A recently filed request on a motion for a protective order in federal court has thrown a spotlight on U.S. Equal Employment Opportunity Commission practices regarding contacting employees and former employees when investigating complaints.

The EEOC recently filed suit against United Health Programs of America Inc. after workers alleged they were forced to say "I love you" to co-workers on account of their employers' beliefs in "Onionhead,” which is a religion founded by a relative of the owners of United Health.” The suit, EEOC v. United Health Programs of America, also alleges employees were forced to engage in prayer, wear Onionhead-related pins and burn candles in the workplace.

United Health Programs of America requested permission to file a motion in federal court to bar the EEOC from contacting its employees and former employees. According to the letter filed by counsel for the defendants, the EEOC began investigating this matter in 2011, and in October 2012 and June 2013 sent letters to former employees of the defendants requesting they contact the EEOC about the defendants.

The catalyst for the recent request was a Dec. 3, 2014, letter that the defendants believed was sent to all current and former employees of the defendants which, according to them, laid out "skewed facts" and seemed to imply that a response to the letter was mandatory. According to the motion, if employees did not respond to the letter, they were called by the EEOC and sent a follow-up letter. Defendants further allege they received complaints from employees about the letters sent and telephone contacts by the EEOC.

In response to United Health’s request for leave to file a motion for a protective order, the EEOC denied that the letters were misleading and noted that there were no imminent plans to send out any other similar letters or to otherwise contact employees. Notably, the EEOC did not deny contacting current and former employees, in some cases on multiple occasions. Rather, the EEOC took great pains to point out that nothing prohibited them from engaging in such conduct.

The request to file the motion for the protective order included the EEOC’s letters to current and former employees, which is a rarely glimpsed window into the investigation. The Oct. 10, 2012, letter starts by saying: “Your name was provided in the course of a federal investigation as someone who may have witnessed and/or experienced religious discrimination, or harassment at your former employer, United Health Program.” This, according to the defendants, is not true. Instead, while investigating the charges, the EEOC requested the names and addresses of all employees who had been terminated by the defendants. That list, not a more specific list of people who had witnessed behavior or complained about discrimination, is what was used by the EEOC when sending the letter.

The letter goes on to request that if the addressee was “subjected to religious discrimination, harassment and [was] terminated for opposing your participation in the Onionhead workshops” to please contact the investigator. Perhaps, most troubling to employers is this sentence in the letter: “If you were a former manager or supervisor we will speak with you about any discriminatory experiences you faced personally at the company.” (Emphasis in the original).

The June 2013 letter is similar in tone, but states: “If you were a manager or supervisor when employed, we will only speak with you about your personal experiences in this matter, not about any actions you may have taken in your management capacity.”

These two letters seem to be in direct conflict with the EEOC’s guidelines for witness interviews, at least as have been verbally communicated by investigators in different offices. The general rule according to investigators is that employers have a right to know which supervisors are being contacted and to have a representative present at any interviews. Conversely, employers have no right to know which nonsupervisory employees the EEOC contacts. With these letters, the EEOC seems to be walking a fine line in this regard.

Another area of concern for employers is the overt solicitation contained in the EEOC’s communications with current and former employees. Although the December 2014 letter is far more neutral in tone as to how the EEOC secured the addressee’s name, it nonetheless overtly solicited employees to become a claimant. Specifically, the letter asked the recipient to contact the EEOC so that “we can talk about the case, including whether you might qualify as a claimant.”

The claims raised by the defendants in the United Health case are reminiscent of another employer’s recent complaints about the EEOC’s tactics. In September 2014, a federal judge tossed a case filed by Case New Holland Inc. against the EEOC for interference with its business operations. The lawsuit stemmed from actions taken by the EEOC in 2013, when it sent an email blast to 1,000 employees of CNH. The email informed recipients that the EEOC was investigating the company over allegations that it “discriminated against job applicants and current and former employees from Jan. 1, 2009, to present.” The message also contained a link to an Internet survey that CNH says was biased and asked its employees leading questions.

The underlying EEOC charge in the CNH case was filed in 2012 and was based on age discrimination claims. According to CNH, it submitted a formal position statement and produced hundreds of documents in response to information requests, yet received no warning that the email blast would be sent to its employees. Despite the fact that the underlying charge was based on age discrimination, the EEOC blast email sought information related to any claims of discrimination. Most notably, the EEOC sent out this mass email trolling for claims even before it issued any finding of probable cause in the underlying charge.

In short, employers should expect that investigators are doing more than trying to gather facts as part of their investigation.

When faced with a charge or complaint, employers should plan a communication strategy for their employees. In most cases, employers do not wish to announce to employees that they are defending a claim of discrimination. In some cases, employers may choose to be preemptive and notify employees that they may be contacted as part of the investigation.

Employers do need to be careful in those communications with employees, however. In the United Health case, the defendants are not the only ones crying foul. The EEOC asserted that during the investigation the defendants contacted former employees and offered monetary inducements not to talk to the commission. It is clear that this would be improper, but it does raise questions about inferences that may be drawn where employers have reached settlements with former employees that may restrict the speech of those former employees. This is another hot-button issue for the EEOC right now and employers should review severance agreements to determine if their agreements pose a risk of enforcement action by the commission.

So, what is and what is not permissible? Employers cannot tell employees they must not cooperate with the EEOC lest they face claims that they interfered with the employees' rights to report discrimination. Employers should also be careful so as not to appear to be inducing employees not to cooperate with the EEOC.

Employers can, however, tell employees that they do not have to cooperate with the EEOC if they do not wish to do so. It is also fine to tell employees that if they do speak with the EEOC, that they should tell the truth. Employers should be careful to also let employees know that no action will be taken against the employee if the employee speaks with the EEOC.

Reprinted with permission from Law360. (c) 2014 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.