posted 06-12-2012 02:47 PM            

quote:

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(c)(1)(i) The terms economic loss or injury to the employer's business include both direct and indirect economic loss or injury.

(ii) Direct loss or injury includes losses or injuries resulting from theft, embezzlement, misappropriation, industrial espionage or sabotage. These examples, cited in the Act, are intended to be illustrative and not exhaustive. Another specific incident which would constitute direct economic loss or injury is the misappropriation of confidential or trade secret information.

(iii) Indirect loss or injury includes the use of an employer's business to commit a crime, such as check-kiting or money laundering. In such cases, the ongoing investigation must be limited to criminal activity that has already occurred, and to use of the employer's business operations (and not simply the use of the premises) for such activity. For example, the use of an employer's vehicles, warehouses, computers or equipment to smuggle or facilitate the importing of illegal substances constitutes an indirect loss or injury to the employer's business operations. Conversely, the mere fact that an illegal act occurs on the employer's premises (such as a drug transaction that takes place in the employer's parking lot or rest room) does not constitute an indirect economic loss or injury to the employer.

(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 injury 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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The issue here is that they don't have reasonable suspicion of a particular employee. You can't use polygraph as a fishing expedition in these cases. If you say "test 'em all," then you're saying you don't have enough, and that's a problem under EPPA.

posted 06-12-2012 08:34 PM            

quote:

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Reasonable suspicion is a different standard in employment law than in criminal law. If two employees cleaned the office and both gave statements dening involvement, reasonable suspicion is met by citing the conflict between the employee statements. When the number of employees with access is small the reasonable suspicion standard is not difficult to meet.

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But we're talking about reasonable suspicion under EPPA - not generally in regard to employment law. I'd refer you to the document I referenced before, but here's a relevant portion:

quote:

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(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. Access in the sense of possible or potential opportunity, standing alone, does not constitute a basis for “reasonable suspicion.”

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Think about it though. Let's use your example and assume employee A had access as did employee B - and nobody else. Let's assume A is innocent and rightfully denies the theft. You have no reasonable suspicion that particularly identifies employee A as the likely culprit. Now that employee B says he didn't do it either, how does that give you reasonable suspicion that A did it? You have reasonable suspicion that one of them did it based on their limited access, but you don't have any facts to say who - with particularity - is the probable thief.

posted 06-13-2012 03:24 PM            

Information from a co-worker, or an employee's behavior, demeanor, or conduct may be factors in the basis for reasonable suspicion. Likewise inconsistencies between facts, claims, or statements that surface during an investigation can serve as a sufficient basis for reasonable suspision.
(2) ...the employer may formulate a basis for reasonable suspicion based on sole access by one employee.

(3) The identity of a co-worker or other individual providing information used to establish reasonable suspicion need not be revealed in the statement.

[This message has been edited by wjallen (edited 06-13-2012).]

[This message has been edited by wjallen (edited 06-13-2012).]

posted 06-13-2012 03:41 PM            

The last APA training session on EPPA that I attended contained many misstatements by our expert. The direct loss issue was one. The question of sole access was another. I have tested under this law for tewnty four years, so its not new, it is settled federal labor law. I commend you and your association for your efforts and only wish I were able to attend.

[This message has been edited by wjallen (edited 06-13-2012).]

posted 06-15-2012 03:13 PM            

Barry

Each case is different with unique case facts. This was my last case. It is unusual because I tested three managers.

Over the Memorial Day weekend manager 1 closed the restaurant Saturday night. He put Sat. night deposit in the safe. Sunday morning he goes by the office and manager 2 assumes manager 1 is there to take the Sat deposits to the bank drop so she signs report that bags were dropped. Manager 3 comes in Monday and takes Sat morn deposit and both Monday deposits to bamk drop. Tuesday when the bank opens general mgr goes and gets the bags and deposit slips. No slip for Sat night deposit. A check of the bank video shows no drops on Sunday. At first mgr 1 gives statement he took deposits on Sunday but after the review he thinks he confused Sat when he took the Friday deposits with Sunday.

posted 06-27-2012 03:18 PM            

One of six parties a possibility. All denied. One fails. No admissions. Now no longer reasonable suspicion for the rest. Was there ever? Court didn't address that, but since it was just as possible that more than one person was involved, then it seems the Court was concerned about the specificity issue that the law requires. I wouldn't want to be the next case to clear that ambiguity. Nor would I want to depend on a company employee to hold fast on the reasonable suspicion issue (this one caved) under cross-examination.

This advice is very similar to the advice the AAPP attorney reported giving his clients - and he like polygraph:

quote:

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Before the Polkey case, the EPPA’s strict requirements concerned many employers when thinking about polygraph testing in the workplace. The Polkey case gives even more reason for concern. While the EPPA does permit polygraph testing under certain limited exceptions, the Polkey case unmistakably demonstrates that the courts view these exceptions as particularly narrow, and in most circumstances, perhaps not worth the effort.

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posted 07-07-2012 06:28 PM            

I am familiar with the Polkey case you cite. In this case the employer used a general waiver(EPPA violation 1) did not refer to the issue under investigation(EPPA violation 2) did not state any reason to suspect involvement(EPPA violation 3) and did not give 48 hr(EPPA violation 4). Then after the matter was resolved the employer retailated against an employee who exercised the right to refuse, the very right the act established and protects.

Can you or APA legal point us toward cases where an employers good faith effort to meet EPPA standards has been upheld or found lacking?

posted 07-09-2012 01:46 PM            

Upholds Employers reasonable suspicion. "Under the totality of the circumstances, Defendant had a reasonable suspicion that Plantiff was involved in the cash shortage."