by Joe English and Ariel Dubrow
The Equal Employment Opportunity Commission (EEOC) has the ability to subpoena a broad array of documents and records from third parties. Responding to such a subpoena can impose a costly burden on third parties. 
EEOC’s broad subpoena powers
An employer’s dealings with the EEOC typically stem from an administrative charge filed by a current or former employee. However, businesses are sometimes hit with an unexpected, nettlesome, and costly surprise: an EEOC third-party subpoena. The EEOC has the power to issue subpoenas to third parties, meaning it can order them to produce documents and records in connection with an agency investigation or litigation of a discrimination charge filed against another company. Most vulnerable are companies that provide some type of service to employers as a vendor (e.g., testing companies, staffing companies, and background check companies).
The EEOC’s investigative subpoena power is governed by Section 161 of the National Labor Relations Act (NLRA). When a third party receives an EEOC records subpoena, it has only five days to respond with a written petition or objection seeking to revoke or modify the subpoena. Obviously, time is of the essence: A company and its counsel must act quickly to prevent an argument that objections to the subpoena have been waived.
If the third party decides to file a petition challenging the subpoena, the EEOC must to go to a federal district judge to enforce the subpoena. If the EEOC’s third-party subpoena is issued in the course of litigation, the request is governed by Fed. R. Civ. P. 45, and the third party has up to 14 days to object unless the date by which documents must be produced is sooner.
The scope of an EEOC subpoena issued to a third party can be staggering, particularly if the agency is pursuing a companywide or systemic investigation or litigation against the employer that’s the subject of the underlying EEOC charge. Such a subpoena can impose a substantial burden on a third party.
Burden on third parties
For even the narrowest of subpoenas, retrieving and producing the requested documents requires an investment of time and money. Such requests often involve electronic records; it’s well-known that responding to requests for electronically stored information is a cumbersome and time-consuming task. Additionally, many of the documents or other records may contain confidential information, such as trade secrets or even medical information.
An illustrative, albeit extreme, example of the effect of a third-party EEOC subpoena on a company can be found in the multiyear legal saga of EEOC v. Kronos, Inc. In that case, the U.S. 3rd Circuit Court of Appeals was twice asked to resolve disputes over an extensive third-party subpoena issued to a testing company whose test was used by Kroger as a partial basis for rejecting a job applicant. The EEOC sought documents and records from Kronos of such a magnitude that a federal district judge termed the subpoena “breathtaking” in scope.
Ultimately, the 3rd Circuit largely upheld the EEOC’s broad subpoena powers, concluding that “relevant” documents may include details outside the scope of the underlying EEOC charge. In fact, according to the court, relevant documents may include documents covering jobs outside the related charge, an employer’s nationwide practices, and the third party’s business with other employers. The 3rd Circuit did approve a cost-sharing plan that divided the financial burden between the EEOC and the third party, but the testing company still bore a tremendous burden.
Bottom line
The EEOC has broad subpoena power over third parties, and time is of the essence when you’re faced with a subpoena—particularly if it’s an administrative subpoena. Third parties to EEOC charges should be careful to timely object to or comply with subpoenas to avoid being held in contempt.
Moreover, an EEOC subpoena may be broad in scope and require production of electronic records. Third parties may bargain for a cost-sharing plan to ameliorate the financial burden. 
Even if the EEOC voluntarily agrees to a cost-sharing plan, however, a third party that receives an EEOC subpoena may still be looking at a copious investment of manpower and expense.
Joe English is a member of Taylor English Duma LLP‘s Employment, Labor and Immigration practice group. He may be contacted at jenglish@taylorenglish.com.
Ariel Dubrow Fenster is a law student at Emory University in Atlanta. She may be contacted at ariel.dubrow.fenster@emory.edu.