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Seventh Circuit: Failure to Object to EEOC Subpoena Within five Business days Waives any Future Objection

Addressing an issue of first impression for a federal appellate court, the Seventh Circuit Court of Appeals has ruled that, in order to object to an EEOC subpoena based on irrelevance or overbreadth, an employer must file a petition within five business days of first receiving the subpoena – if no such timely petition is filed, any later attempts to avoid responding are waived. This decision eliminates what had previously been an alternative theory relied upon by some employers: that an initial failure to file an objecting petition could be remedied by filing a motion to dismiss in federal court when the EEOC seeks to enforce the subpoena. Going forward, therefore, employers that receive an EEOC subpoena which they find to be overly burdensome or irrelevant must file a petition within the 5-day period set forth in EEOC regulations. If that opportunity is missed, any future efforts by the employer to avoid responding will be denied.

The case, EEOC v. Aerotek, No. 11-1349 (7th Cir. Jan. 11, 2013), arose when an employer refused to respond to the EEOC's subpoena for certain records in the course of its investigation, arguing that the subpoena was overly burdensome and requested irrelevant information. Unfortunately for the Employer, however, it received the subpoena on September 21, 2009, but did not file its petition until September 29, 2009 –— six business days later. When the EEOC attempted to enforce the subpoena in federal district court, the employer filed a motion to dismiss. The district court, ignoring the timeliness issue, rejected the Employer’s motion on the merits. The Employer, therefore, appealed to the Seventh Circuit.

Unlike the district court, the Seventh Circuit did not even make it to the merits of the motion. Instead, the panel held that the employer had failed to object to the EEOC subpoena within five business days and, pursuant to the plain terms of the EEOC’s regulations, therefore, had lost any right to object to the subpoena based on relevancy or overbreadth. The panel observed “that no other circuit courts have examined” the issue.  It also found, however, that several district courts had found in similar cases that an employer is barred from objecting later when no initial petition was filed, and stated that “[w]e see no reason to make an exception” to that rule. The panel, therefore, concluded that “failure to file a timely petition to revoke or modify a subpoena” bars “an employer from challenging a subsequent application by the EEOC to enforce its administrative subpoena.”  

Employers should ensure that all parties responsible for receiving and/or responding to administrative subpoenas from the EEOC are aware of the five-day response rule, particularly in light of this new holding, placing even more importance on a quick response. When it comes to objecting to EEOC subpoenas based on relevancy or burden, employers only get one bite at the apple — and that bite needs to be taken quickly.

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