Lawyers Criticize Broncos’ Use of Polygraph in Kircus Case

James Paton reports for the Rocky Mountain News in “Legal officials say Broncos’ use of lie-detector test was ‘out of bounds'”:

Denver attorney Colin Barnacle, a fervent Denver Broncos fan and season ticket holder, isn’t one to challenge Mike Shanahan. But when the coach of the beloved Broncos subjected one of his players to a lie-detector test, Barnacle threw the flag.

If clients call seeking advice on whether that’s a legal move, Barnacle’s reply is usually no. A federal law bars employers from using the exam in most cases.

The Bronco on the hot seat is David Kircus. The receiver said he acted in self-defense in an incident that led to second-degree assault charges against him.

Shanahan, instead of simply standing on the sidelines, came up with the idea to grill Kircus with a lie-detector to determine whether he was being honest.
The 27-year-old athlete, reportedly eager to sit down and face the interrogation, passed.

“If he flunked the test, he would not be with us,” Shanahan was quoted as saying.

That was a bad call, said Barnacle, who works in the 17th Street office of law firm Jackson Lewis.

“Our concern with a news story like this, with a highly visible figure in Denver and a highly respected organization like the Broncos, is that there was no reference whatsoever to the law,” said Barnacle, who sent a letter to news outlets after hearing the Kircus story on the radio. “I can see an HR manager down the street saying, “Hey, the Broncos did it, why can’t we?”
Richard Alan Winkel, another lawyer in Denver, said companies must be “very cautious” in telling workers “they need to take a polygraph to retain a job.”

Other legal observers expressed stronger opinions.

Barnacle said “first and foremost, we are Broncos fans,” adding he appreciates the team’s quest for the truth. But he said he believes the club strayed from the legal playbook.

Lawyer David Lichtenstein offered his assessment: “No pun intended, but I think they were out of bounds.”

That’s because the law says the test is typically off limits.

There are scenarios in which it is permitted. An employer can sit a staffer down for an exam amid an investigation into workplace theft, to cite one exemption. Prospective workers in the security or drug sectors also can be asked to take a lie-detector.

However the “Employee Polygraph Protection Act” says an employer cannot “require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test” or “use, accept, refer to, or inquire about the results of” any test, according to the U.S. Department of Labor’s Web site.

Employers also are prevented from disciplining or firing someone on the basis of the results.

Shanahan’s use of a lie-detector isn’t an egregious offense — if it is one at all — but it could lead employers in Broncos country to mistakenly think they can do the same, lawyers said.

Why so tough on companies seeking to use polygraphs? The bottom line is results of lie-detector tests are “not considered sufficiently reliable to be admissable as evidence” in court, said attorney Barry Roseman.

“That’s a big reason Congress passed the law,” he said.

patonj@RockyMountainNews.com or 303-954-2544