Tuesday, September 10, 2013

Forget the NSA, EEOC to use your email system to fish for clients?

This is from Tim Gould at HR Morning

eeoc emails

Wait — the EEOC is now trying to drum up business through email?  

So it would seem. And a lot of businesspeople are up in arms over it — none more than the folks at heavy equipment manufacturer Case New Holland, which has filed suit against the Equal Employment Opportunity Commission in a Washington, DC federal court.

We know that many organizations look to increase business through email campaigns. But a federal agency? Give us a break.

Here’s the story:

Back in March, 2011, the EEOC notified Case New Holland that it would be performing a “nation-wide review” of CNH and affiliated businesses under the Age Discrimination in Employment Act.

The EEOC made several different requests for a wide range of CNH records, including hiring, promotion and firing records and a slew of computer data.

CNH provided the material to the EEOC and the investigator in charge of the case, Chetan Patel. The total amount of material was over 600 megabytes of information –more than 66,000 pages’ worth, according to CNH court’s filing.

And then nothing happened for a year an a half.

Mail’s delivered

And then the emails arrived. Here’s how CNH described the situation in its court filing:

On the morning of June 5, 2013, the EEOC commenced a mass email and web-linked inquiry to 1,330 CNH (or affiliate) business email addresses of CNH employees located throughout the United States and Canada. Over 200 recipients of the mass email were CNH (or affiliate) managers or others who, arguably, have the authority to bind CNH in a court of law.

The EEOC delivered [the] emails at about 8 a.m. Eastern Time on Wednesday, June 5, 2013, meaning that well over 1,000 CNH employees were greeted on a Wednesday morning, immediately after they logged into their business computers, with an email inquiry from the United States government about their employer, of which their employer had no prior notice whatsoever.

The company said it had no prior notice of the agency’s plans to send the email, and hadn’t been furnished with a copy of the message that was sent June 5.

The email began with a statement that the EEOC was “conducting an investigation into allegations” that the employer “discriminated against job applicants and current and former employees from Jan. 1, 2009 to the present.”

Irony alert: The agency was in possession of those email addresses because the company had included the information when it complied with the EEOC’s initial request for records.

Questionable questionnaire

The message contained a link to a questionnaire that recipients were expected to click on and complete.

This questionnaire “was biased,” CNH claimed. “On the subject of age discrimination, its questions were leading, and suggested answers” that were likely to paint the employer in a bad light.

Three sample questions:

“At any point during the application process, did anyone … make any comments about your age?”

“At any point during the application process, did anyone … make any comments about the age of applicants/employees?”

“At any point during the application process, did anyone … make any other age-related comments?”

The questionnaire did not include a statement about the right of the employee to refuse to complete the survey, CNH said. And it also asked for employees’  birthdates, addresses and phone numbers “in case we need to contact you.”

The company claimed that the emails disrupted normal business operations, and raised unnecessary and unfounded fears among workers:

A “federal investigation” of one’s employer is alarming. It suggests wrongdoing (when none exists). It causes employees to become concerned about their employment livelihood. …

A “federal investigation” by business (or any) email prompts employees, impulsively, to question what other information the government already possesses about them … [They question] whether the federal government is on a misssion to collect data on them, and excitedly speculate about the purpose of the collection efforts.

Immediately after learning of the email blast, CNH asked the EEOC to provide the email list it used and a rationale for its actions. That message was passed upstairs, apparently, all the way to the agency’s five commissioners.

No response was forthcoming.

Finally, after Rep. Joe Pitts (R-PA) made noises at the agency, the EEOC district director issued a statement that the email approach was “efficient.”

Eventually, CNH filed the pending lawsuit.

CNH wants the federal court to: declare the agency violated the Administrative Procedures Act and the U.S. Constitution; grant a permanent injunction prohibiting the EEOC and Patel from sending emails to its employees; grant a permanent injunction ordering the defendants to turn over all information gathered through the email blast; grant a permanent injunction prohibiting the defendants from disclosing any of the information they gathered to a third party; and grant a permanent injunction prohibiting them from utilizing the information they gathered “in any subsequent lawsuit the EEOC may commence against CNH.” The company also is asking for attorney’s fees and costs.

 The lawsuit is Case New Holland Inc. v. EEOC