Article courtesy of SBAM Approved Partner AdvanceHR
If you think an employee may be stealing from the company, there’s a good chance you are right. But is a polygraph test the best way to establish the truth? The answer is… maybe. Find out what happened in one new case involving a Wendy’s restaurant employee, and learn the ground rules for using a polygraph test.
Congress laid down the law on the acceptable use of lie detectors –specifically polygraph tests — at the workplace with the Employee Polygraph Protection Act of 1988 (EPPA). On occasion courts weigh in to say whether a particular employer’s use of the polygraph was legal. One such case was recently decided, though narrowly, in favor of a Wendy’s restaurant.
First, a reminder of EPPA’s basic provisions. According to Jon Hyman, a partner with the Cleveland-based law firm Kohrman Jackson & Krantz, EPPA prohibits private employers from:
- Requiring, requesting, suggesting or causing an employee or prospective employee to take or submit to any lie detector test
- Using, accepting, referring to, or inquiring about the results of any lie detector test of an employee or prospective employee, and
- Discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against an employee or prospective employee for refusing to take the test, or on the basis of the results of a test.
Were it not for some exceptions to those broad limitations, there would be no point in considering the use of a polygraph. The most important exception, Hyman explained, involves “employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation.”
Bass v. Wendy’s: The Facts of the Case
In Bass v. Wendy’s of Downtown, Inc. (U.S. District Court, N.D. Ohio, Case No. 11-CV-940, May 1, 2012), Donald Bass was a part-time manager, who was asked to take a polygraph test after a cash deposit went missing. Only two employees had access to the cash. Both were asked by Wendy’s to submit to a polygraph examination as part of the investigation. Although they could have refused, both agreed and, according to the polygraph operator, Bass flunked. However, he was not terminated.
Two years later, Wendy’s posted openings for two management positions. By this time, Bass had already left Wendy’s, after he was recorded on a security camera, inappropriately touching a female employee. His resignation came at the request of management. Later, when he learned Wendy’s was hiring managers, Bass asked to be considered for one of the new jobs. Wendy’s declined.
Bass then filed a complaint with the Ohio Civil Rights Commission, alleging he had been a victim of age discrimination. In its defense, Wendy’s offered a variety of justifications for its decision — including Bass’s failure of the polygraph test.
Bass sought damages from Wendy’s in federal court based on:
- Wendy’s disclosure to the Civil Rights Commission that the polygraph and been administered and
- Wendy’s statement that Bass admitted to criminal conduct.
While the court faulted Wendy’s references to the polygraph results and Wendy’s characterization of those results, it nevertheless decided to drop the case. Why? Bass offered “no evidence that he was in any way damaged by Wendy’s disclosure of his failed polygraph examination.”
Although its action appears blameless on a substantive level, Wendy’s may have dodged a bullet in this case through its reference to the polygraph results. The case illustrates the critical importance of scrupulous adherence to EPPA’s exacting requirements. Hyman listed several additional hoops employers need to jump through:
- The employee must be provided with a written notice explaining the employee’s rights and the limitations imposed by EPPA.
- Prior to the polygraph test, the employee must be provided a notice explaining the specific incident or activity being investigated and the basis for the employer’s reasonable suspicion of the employee’s involvement.
- The employee can refuse to take a test or terminate it at any time.
- The polygraph examiner must be licensed, bonded or insured.
Why might an employee agree to submit to a polygraph test when he doesn’t have to? “Some people naively think they can beat the test,” Hyman said.
Even if an employee declines to take the test, the fact that the employer had to justify, based on evidence, that there were grounds to ask an employee to take the test, may cause the employee (if guilty) either to stop doing what he or she is suspected of having done, or quit.
Overall, Hyman recognizes the value of a polygraph, but advises that it should be used with caution. “I wouldn’t recommend that employers think of the polygraph as the be all and end all,” Hyman said. “They’re accurate, but they’re not perfect.”