Employer Defense Firm Sanctioned For Investigation of EEOC Claimants
As it happened, the EEOC's expert witnesses also conducted discovery beyond the deadline by mailing questionnaires and making telephone calls to try to locate additional FAPS applicants.
Arpert noted that "case law is not definitive regarding the moment when the EEOC enters into an attorney-client relationship with members of the class it seeks to represent." Some courts require evidence that potential claimants expressly contacted the EEOC to represent them or at least affidavits stating that they sought legal advice from the EEOC with the understanding that their communications were confidential.
But courts are more likely to find attorney-client relationships when the claimants are current employees of the defendant. Arpert said that since the claimants are not FAPS employees, there is a stronger presumption against the existence of an attorney-client relationship than in support of it.
Ultimately, Arpert avoided deciding the question and instead applied sanctions under Fed. R. Civ. P. 37 for DeCotiis FitzPatrick's failure to comply with the order ending discovery.
He denied the EEOC's request for an order permitting it to depose the investigators.
Frino says the firm opted to seek the interviews because both sides were limited to 10 depositions each. He says no decision has been made on an appeal.
EEOC lawyer Rosemary DiSavino, who filed the suit, declines to comment.
Alan Hyde, who teaches employment law at Rutgers Law School-Newark, calls the ruling "a wise resolution because there is no happy answer to the problem of defining the attorney-client relationship."
"Eventually, someone will have to work out the rules for this relationship, which is not like any other relationship in administrative law, not exactly an attorney-client relationship, but not exactly not an attorney-client relationship. Until this happens, we may expect judges to duck the issue," says Hyde.
Michael Homans, a labor and employment lawyer at Flaster/Greenberg in Cherry Hill, says the investigators' conduct, in misleading claimaints and continuing to question them after learning they were represented, seems to have upset the judge.