Wednesday, February 4, 2015

Employers seek to halt EEOC’s efforts to drum up plaintiffs for its “Onionhead” lawsuit

You may recall the lawsuit filed the EEOC claiming that a New York employer forced its employees to join a religion called “Onionhead.”

Now, Employment Law 360 reports that the company’s counsel is trying to block the EEOC from reaching out to the company’s employees to seek additional plaintiffs for its lawsuit.

The employers have asked the federal judge hearing the case to block the EEOC from any further “solicitations of Defendants’ current and former employees for participation in the lawsuit.” You can download a copy of the employers’ letter to the court here [pdf].

According to the company, the EEOC’s letters, printed on government letterhead, provided the employees a one-sided description of the case, omitted a statement that liability has yet to be decided, and created the impression that the employee must contact the EEOC.

Decide for yourself.

If the employer is true, the EEOC is going to have issues. A federal agency cannot misrepresent litigation to drum up support among employees. It also cannot provide employees a mistaken impression that they must cooperate.

At the same time, however, employers faced with alleged misconduct like that alleged in the Onionhead lawsuit must tread very carefully so that they do not unlawfully retaliate against the employees by interfering with their participation rights. For example, an employer cannot forbid employees from cooperating with the EEOC, or even dissuade them from contacting the agency.

What should employers do?

  • They can tell employees that it is their choice whether to contact, or cooperate with, the EEOC.
  • They can tell employees to be truthful when talking with the EEOC.
What must employers do? 
  • They must guarantee employees that they will not suffer any retaliation, no matter their choice.
Employers faced with an EEOC investigation should know that the agency is using these tactics, so that they can proactively, and lawfully, respond by delivering the right message to their employees.