Phishing emails, if you’re lucky, are only an annoyance – but at their worst can result in theft and significant damage. We expect that out of unscrupulous, anonymous scam artists on the internet – but not from our own government.

Early this summer, the Equal Employment Opportunity Commission (EEOC) without any finding of discrimination or advance notice to Case New Holland (CNH), the EEOC delivered an email blast to the business email Inboxes of 1,169 CNH employees.  The blast email advised the employees, well over a hundred of whom are managers, that the EEOC is investigating CNH for age discrimination.  It then directed the employees to provide to the government, through a secure internet site, evidence of discrimination and personal contact information.

The issue in this case, previously unexplored in law,  represents an inexcusable foray by the government into a brave new world of arbitrary and unauthorized interference in employer operations. As a result, the NAM has taken the lead in filing an amicus brief (filed on 11/14/13) in support of CNH for declaratory and injunctive relief against the EEOC and an Investigator in the U.S. District Court for the District of Columbia.  The EEOC actually admitted, in later correspondence, that its blast email was trolling for class action plaintiffs to sue CNH.   The EEOC’s actions constitute a taking, indeed a theft, of employee time and therefore the government has a “categorical duty to compensate” Plaintiffs – and failure to do so likely violates the Fifth Amendment of the Constitution. This type of aggressive phishing is unacceptable and NAM will stand with our Members to push back against these types of predatory practices.

Patrick Forrest is Vice President and Deputy General Counsel at the NAM. He also serves as part of the Manufacturers’ Center for Legal Action, the leading voice of manufacturers in the courts. To read more about the Manufacturers’ Center for Legal Action, please click here

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