posted 06-27-2012 10:23 AM         

Dealership owner calls me and wants to test three technicians who work the body shop.

I explain the basics of EPPA and recommend that they go over it with their corporate counsel.

There's no material loss that I can see, so I doubt EPPA applies.

Am I overlooking anything? Is there any way to legally test the suspects?

posted 06-27-2012 05:11 PM         

The customer in this case leases his cars at the dealership. For this exercise,let's say the customer has leased a new car every two years for 14 years. After seeing how his car was misused, he returns the car and demands the lease be nullified, depriving the dealership of the remaining lease payments -- and perhaps the customary settling-up fees. He also swears he'll never do business with them again.

posted 06-27-2012 10:28 PM            

It's late. I'm tired, and this is ugly, but - with the advise of counsel, since I'm not a lawyer - there's hope for this one.

posted 06-28-2012 09:40 PM         

The next question is; do you have enough info to test 1, 2, or all three of the technicians?

posted 06-29-2012 12:04 PM            

As for the dealer, he had no direct or indirect loss that I can see. I don't think ill will, unsatisfied customer relations or possible bad press for the business would stand the Dept of Labor test as indirect loss.

posted 06-29-2012 03:05 PM            

quote:

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(iv) Indirect loss or injury also includes theft or injury to property of another for which the employer exercises fiduciary, managerial or security responsibility, or where the firm has custody of the property (but not property of other firms to which the employees have access by virtue of the business relationship). For example, if a maintenance employee of the manager of an apartment building steals jewelry from a tenant’s apartment, the theft results in an indirect economic loss or injury to the employer because of the manager’s management responsibility with respect to the tenant’s apartment. A messenger on a delivery of confidential business reports for a client firm who steals the reports causes an indirect economic loss or in-jury to the messenger service because the messenger service is custodian of the client firm’s reports, and therefore is responsible for their security. Similarly, the theft of property protected by a security service employer is considered an economic loss or injury to that employer.

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It appears some body shop employee took the car. It's a theft, and the employer had custody of the vehicle at the time.

Where there is a problem is with the three techs, notwithstanding those will disagree here.

quote:

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(f)(1) As used in section 7(d)(3), the term reasonable suspicion refers to an observable, articulable basis in fact which indicates that a particular employee was involved in, or responsible for, an economic loss.

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Notice the word "particular."

quote:

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(3) The employer has the burden of establishing that the specific individual or individuals to be tested are ‘‘reasonably suspected’’ of involvement in the specific economic loss or injury for the requirement in section 7(d)(3) to be met.

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Notice "the specific individual" language here. That's what concerns me, and that was at issue in the court case I cited in the other post.

posted 06-29-2012 06:14 PM            

It doesn't appear there is or was an "intent to deprive" as the car was returned (if ever taken). An 'ol "he said - he said." Car owner reports he observed someone driving his car; he can't ID the driver and no other witnesses to corroborate the owners observation. None of the techs with access to the car admit to what (only) appears to be unauthorized use of the car. At this point I don't agree there is a loss of any type.

From what I've read there is no "reasonable suspicion" a particular/specific employee was involved. I don't believe this employer meets the requirements identified in EPPA Section 7 (EXEMPTIONS) and specifically subsection 7(d) that identifies Limited Exemptions For Ongoing Investigations.

"Misappropriation" could work but there is no independent evidence identifying a specific person as the driver. Aren't fishing expeditions prohibited?

Unless I misread EPPA, I would not consider examining any of the three techs with this limited information. Trying to thread to fine a line. Push too hard based on "55 cents per mile" or "probable abuse" and I suspect I may end up needing a lawyer to defend against a civil suit.

END.....

posted 06-29-2012 07:57 PM            

I believe an exam based on "misappropriation" as listed in EPPA can be defended (if) the owner was able to ID the driver. Without the ID or other evidence identifying a suspect, I believe I would be placing myself and the business owner in jeopardy by agreeing to conduct this exam.

END.....

posted 06-29-2012 09:36 PM         

Ted

posted 06-29-2012 09:45 PM            

In my opinion, the "non-attorney examiner" is "on the hook," as you state, as EPPA Section 2(2), Definitions, identifies an "Employer" as " - any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee."

Prior to reviewing the definitions section of EPPA I believed an employer is, as many of us may believe, one person that hired another person, the possible examinee, to work for them. I simply considered myself the polygraph examiner involved in an investigation. After reading the definitions, it appears the examiner is defined as an "employer" as they are a person acting in the interest of an employer.

I prefer to be conservative in my approach to all issues but am I reading too much into the definition of an employer as defined in the EPPA?

END.....

posted 06-29-2012 09:56 PM         

"I agree it was taken but do not agree it was stolen as it was returned and appears there was no intent to deprive."

Does that mean that no crime/loss has occurred?

posted 06-29-2012 10:49 PM            

If the vehicle was used as described a public offense was committed. I'm getting ahead of myself but thinking not too many DA's will file on this specific issue with this limited information. No, there is no loss, the vehicle was returned (if it was ever taken). Based on the cited circumstances I read, there is no evidence other than a statement from the vehicle owner the car was being driven.

I don't believe the issue is whether or not a crime was committed. The issue to be resolved is whether or not, based on the circumstances Managan cited, any one or all three employee's can be tested.

Do you believe any or all three techs can be tested; why or why not?

posted 06-29-2012 10:51 PM            

As to theft, your citing the common law definition. Long ago, people realized the "intent to deprive" issue was a problem in certain circumstances. Thus, the creation of classes of thefts such as "Theft by unauthorized use," which required no intent to permanently deprive.

posted 06-29-2012 11:11 PM            

§ 801.2 Definitions.

(c) The term employer means any person
acting directly or indirectly in the
interest of an employer in relation to
an employee or prospective employee.
§ 801.2
A polygraph examiner either employed
for or whose services are retained for
the sole purpose of administering polygraph
tests ordinarily would not be
deemed an employer with respect to the
examinees.

Would you test any of the techs?