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Fight for your right: Employer successfully challenges EEOC administrative subpoena

Administrative agencies, the EEOC and NLRB included, often view their subpoena powers broadly – sometimes in the estimation of employers and their counsel, too broadly. A recent Pennsylvania federal court case took a narrower view.

In EEOC v University of Pittsburgh Medical Center (UPMC).pdf, the district court for the Western District of Pennsylvania ruled that an administrative subpoena the EEOC issued the University of Pittsburgh Medical Center was a “fishing expedition” and denied the application for enforcement of the subpoena.

The dispute stemmed from an Americans with Disabilities Act (ADA) charge filed against a nursing home employer, Heritage Green, regarding an employee it discharged after the employee exhausted available leave. Heritage Green is a subsidiary of UPMC.

The EEOC sent UPMC a request for information seeking the identity of all employees corporate-wide who had been terminated pursuant to leave of absence or disability policies. When UPMC refused, the EEOC issued a subpoena for the information. UPMC filed a motion to revoke or modify the subpoena.

The court stated that, while the EEOC has broad subpoena power, that power is not without limits. The court concluded that the EEOC’s subpoena “overreached” and that the information sought could not be deemed relevant to the charge.

The court also somewhat chastised the EEOC for not doing anything to otherwise investigate the charge, or to more narrowly tailor the information sought. The EEOC had not made any effort to determine whether an individual violation occurred before launching an investigation into an alleged systematic violation.

Most state and federal agencies have been increasingly aggressive in recent years regarding their use of subpoena power. While employers should proactively engage administrative agencies to avoid potentially costly subpoena disputes, employers also should carefully review information sought, both informally and through subpoenas, to ensure they are not needlessly opening their operations to unnecessary scrutiny.