Volume 2, Issue 4 – February 28th, 2014
In recent years federal agencies intensified their investigation and enforcement tactics. Last year the Equal Employment Opportunity Commission did so dramatically by emailing thousands of employees of Case New Holland Inc. through the company’s own computer network, trying to build a class action lawsuit against CNH for age discrimination.
On Aug. 1, 2013, CNH sued EEOC, asserting that it had sent 1,330 emails to CNH business email domains without notifying the company to solicit plaintiffs for a class action lawsuit against CNH. This new investigation tactic was employed prior to any finding of discrimination and without notice of any kind to CNH, the company said.
EEOC began its investigation of CNH in March 2011. CNH actively participated in the ongoing investigation, including producing more than 600 megabytes of data requested by the commission.
After it produced that data, for a period of about 18 months, the company heard nothing from EEOC. CNH then learned that EEOC sent an inquiry to 1,330 CNH email addresses of company employees located in the U.S. and Canada. This included more than 200 managers or others with authority to bind the company legally through their answers.
The email received by CNH employees contained a link to a series of questions. When employees clicked the link they were taken to the survey page which stated “Please complete and submit this electronic questionnaire as soon as possible.”
CNH says the survey was biased, that the questions related to age discrimination were leading and the suggested answers adverse to its interests.
“Moreover, and potentially most troubling, there was no information in the email or on the survey about the employees’ right not to complete the questionnaire,” observed attorney Whitney M. Harmon, who is not involved in the case.
CNH noted that EEOC has no regulation allowing it to send mass business email inquiry of employees through the use of an employer’s computer network.
Before the lawsuit was filed, EEOC had said the use of the email and survey was simply an efficient way to identify potential class members.
