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EPPA Decission

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Author Topic: EPPA Decission
Ted Todd
Member
posted 10-06-2005 11:36 AM Click Here to See the Profile for Ted Todd Edit/Delete Message
I just found this on another site. Anyone know anything about this??

"Polygraph Testing
If you use polygraph testing to investigate employee wrongdoing, a recent decision by a federal appeals court may make you rethink ever using it as an investigation tool.
T he federal Employee Polygraph Protection Act (EPPA) restricts the use of lie detectors. California law also prohibits demanding or requiring a polygraph or similar test as a condition of employment.
In the case, Transtecs' management arranged for two polygraph tests during an investigation, first to "clear the company of fault" and later to allow each employee to "clear their name." One of Transtecs' employees, Sandra Polkey, refused the polygraphs and was terminated, whereupon she sued the company.
Transtecs argued that the test had only been requested, and that it was allowed under the exception for ongoing investigations. The appeals court disagreed. The EPPA prohibits an employer from even requesting or suggesting a polygraph exam. The limited exception for investigations requires, among other conditions, a reasonable suspicion of the employee's involvement. Transtecs admitted it had no reason to suspect Polkey of wrongdoing. Polkey v. Transtecs Corp., 404 F.3d 1264 (11th Cir. 2005),."

Sounds to me like a VERY clear EPPA violation

Ted

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sackett
Moderator
posted 10-06-2005 12:09 PM Click Here to See the Profile for sackett Click Here to Email sackett Edit/Delete Message
Ted,

just curious; did the full article mention any tests actually being conducted?


Jim

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Ted Todd
Member
posted 10-06-2005 01:49 PM Click Here to See the Profile for Ted Todd Edit/Delete Message
Jim,

I just swiped this of an email. I have not read (nor yet found), the complete article.

You know darn well it is just a matter of minutes before the entire article is posted on you-know-who's site!

Ted

[This message has been edited by Ted Todd (edited 10-06-2005).]

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Joey55
Member
posted 10-06-2005 06:42 PM Click Here to See the Profile for Joey55 Edit/Delete Message
As a graduate two months ago, that was a test question we had to pass. The answer was that a company must exhibit some monetary loss and there must be an ongoing investigation testing only persons who had access to the area under question and there had to be reasonable suspicion or probable cause. An attorney in our class said that once the guilty person confesses or post test reveals the guilty person then all testing must cease. We were told that tests couldn't be given at that point just for someone else to try to clear their name. This was all under EPPA. So, is this really something new?

[This message has been edited by Joey55 (edited 10-06-2005).]

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Taylor
Member
posted 10-06-2005 07:27 PM Click Here to See the Profile for Taylor Click Here to Email Taylor Edit/Delete Message
I received the same email. It appears they violated EPPA rules. From the info in the email, it doesn't appear to be anything new...just bad decisions on the part of the company and the polygraph examiner that agreed to conduct the exams. Taylor

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rnelson
Member
posted 10-07-2005 12:13 AM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
This appears to illustrate the difference between diagnostic and screening test situations - in which there is, or is not, a known incident in which there is reason to suspect a particular individual's involvement.

While I'm not offering a legal opinion or legal advise on this, I agree that this appears to be a violation of the EPPA to me.

The EPPA seems to allow the use of the polygraph in an ongoing investigation, but does not allow the polygraph to become the basis or impetus for an investigation. "Clearing one's name" appears to be a side-door approach. Either there is or is not a known monetary (or property) loss and reason to suspect a particular employee's involement (i.e., reason to launch an investigation), or there is no reasonable and sufficient basis to investigate a particular employee (e.g., they did not have access or opportunity to be involve in the known loss of money or property). Staying clear about this keeps us in compliance with EPPA, and with in the real of good science with respect to diagnostic/investigative and screening test situations.

(I know its really late and this post will make no sense in the morning.)

r

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[This message has been edited by rnelson (edited 10-07-2005).]

[This message has been edited by rnelson (edited 10-07-2005).]

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Ted Todd
Member
posted 10-07-2005 06:57 AM Click Here to See the Profile for Ted Todd Edit/Delete Message
The key phrase here is "Sandra refused the polygraph and was terminated".

I don't think an EPPA violation can get any clearer!

Ted

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