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On September 29th the NAM submitted an amicus letter to the Supreme Court of California supporting Schwan’s Home Service’s Petition for Review in the case of Colin Cochran v. Schwan’s Home Service. The case asks if an employee is owed reimbursement for a personal item used for work purposes even if the employee incurred no additional costs. California Labor Code Section 2802 requires that employers reimburse employees “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” The trial court ruled that calculating compensation for use of personal item at no cost would be too hard to calculate. However, the Court of Appeals (CoA) held that “The answer is that reimbursement is always required.” Nothing in the language of the decision limits the analysis to cell phones, and thus employees could be owed compensation for any number of mundane personal items utilized in a work context, even if the employee suffered no loss or expenditure. We argued that this ruling is so broad as to be completely unworkable, as well as completely unreasonable. Additionally, the Private Attorney General Act allows for civil fines to be levied against an employer for any violation of the Labor Code, thus compounding innocent failures to reimburse into disproportionate and frivolous fines. Thus, the NAM argued that the Supreme Court of California should take the decision up for review.

The NAM joined with the Equal Employment Advisory Council and the U.S. Chamber of Commerce in an amicus brief urging the Eighth Circuit to overturn a trial court ruling that authorized the EEOC to enforce an administrative subpoena that is not based on a valid charge of discrimination, and that broadly seeks information through a subpoena enforcement action that is not relevant to the charging party’s claims.

A single employee complained to the EEOC about alleged sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, but the company says she did not meet the performance requirements of the general manager position she sought. The EEOC sought a variety of information and documents from the company based on amended allegations that included a charge of class-wide discrimination.

Our brief argued that the new allegations fail to provide a “clear and concise statement of the facts” constituting the alleged violation and would authorize an open-ended audit of all of the company’s employment practices, in violation of statutory language designed to prevent the exercise of unconstrained investigative authority.

We also argued that the individual did not herself claim to be aggrieved by class-wide hiring discrimination, an essential element to an EEOC investigation in this case. The EEOC’s subpoena must be limited to the charges made and supported with facts by the complaining party.

On July 13, 2011, the Eight Circuit affirmed the district court's order enforcing the EEOC's broad subpoena. It found that the charging party had complied with all the statutory requirements, and the charge did not need more than an unsubstantiated belief that discrimination had occurred. It also found that the subpoena generally related to the charge of potential systemic gender discrimination. The ruling validates broad subpoena power at the EEOC, based on unsubstantiated claims.