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Firing employee who refused lie detector test violates EPPA

By Ronald Miller, J.D.

An employee was entitled to summary judgment for alleged violations of the Employee Polygraph Protection Act (EPPA) committed by an employer and a district manager who fired her for refusing to take a polygraph test, a federal district court in Utah held. Because the EPPA prohibits preliminary actions to require an employee to take a polygraph examination, the court rejected the employer’s contention that no violation occurred because no polygraph was actually administered. Further, the court concluded that because the employer did not provide the employee with a statement that “set forth with particularity the specific incident or activity being investigated and the basis for testing particular employees” and certain other details about the incident under investigation, the investigation exception to the EPPA did not apply (Amarosa v Doctor John’s, Inc, July 2, 2014, Nuffer, D).

The employee was a salesperson for lingerie store. One day, after she completed her shift, she was contacted by the district manager who accused her of theft. He stated during the conversation that he intended to have all employees of the store take polygraph test. The employee was later called to mandatory meeting that was being conducted by the district manager. Subsequently, she recorded an individual meeting that she had with the district manager in which the employee was told she would be polygraphed and given a questionnaire. The employee was fired when she refused to take polygraph and complete the questionnaire, and declined to resign. Even after telling the employee that he was firing her, the district manager continued to badger her into taking a polygraph examination.

Polygraph examination. Following her termination, the employee filed suit for wrongful discharge, including an allegation that the employer violated the EPPA by requiring that she take a polygraph examination. The employee filed a motion for summary judgment as to the EPPA violation. The sole question presented was whether the undisputed facts showed a violation of the Act.

The employer and district manager first argued that the EPPA did not apply because no polygraph was administered. However, the court noted that the statute prohibits preliminary actions such as those taken in this instance. By suggesting that the employee take the test and terminating her for refusing to take it, the employer violated the law.

Next, the employer argued that the individual defendant did not have actual authority to administer a polygraph test. Here, the facts indicated that the individual defendant was district manager over the employer’s three stores located within the state; and he was authorized to terminate employees who he believed were not adequately doing their job, including safeguarding inventory from theft and other loss. Thus, the court concluded that he clearly had apparent if not actual authority in the interview and ultimatum.

Investigation exception. Finally, the court rejected the employer’s contention that the investigation exception to the EPPA did not applied to its request that the employee submit to a polygraph. The EPPA permits a polygraph examination in certain instances involving economic loss or injury to the employer’s business. However, that exception requires that the employer provide a statement to the examinee before the test that “sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees” and certain other details about the incident under investigation. Because the employer failed to provide such a statement in this instance, the exception did not apply.