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eppa again

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fidibus
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posted 01-18-2012 04:05 PM Click Here to See the Profile for fidibus Click Here to Email fidibus Edit/Delete Message
ok, construction company accused of copper theft from a site. They will be responsible for paying for the lost copper. They would like to polygraph their employees to show the site owners that none of them stole the copper.
I turned it down because they did not experience direct financial loss. Is this correct?

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Barry C
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posted 01-18-2012 04:19 PM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
Yes, and whom would you test? There needs to be evidence to connect one of the people to the theft. You can't just "screen" a large number of people, and access alone isn't enough.

It's also possible that a bunch of NDI tests could then be used to home in on an alternative suspect and thus use 9truthful_ polygraph results against somebody else, which puts the company experiencing the loss in a bad position if they were to use that information to accuse another party.

EPPA was designed to keep polygraph out of these tests, and it was very efficient in that regard. The AAPP attorney lectured on this a few years back, and he said he tells companies to avoid ever knowing polygraph results - good or bad - because the EPPA statute can come back to haunt you in so many ways. Of course, if you can do a legal test, you're probably safe, but the company that hires you can get themselves into trouble easily, and they may get mad at you for not warning them. It's a good legal question, but I have no idea what duty, if any, an examiner has to his client to warn of potential pitfalls.

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fidibus
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posted 01-18-2012 04:52 PM Click Here to See the Profile for fidibus Click Here to Email fidibus Edit/Delete Message
Thank you Barry. Better to err on the side of caution. Laura

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Bill2E
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posted 01-18-2012 05:18 PM Click Here to See the Profile for Bill2E Click Here to Email Bill2E Edit/Delete Message
IF the employees request a polygraph without the company suggesting it, you could test. It would have to be each and every individual employee. The employee could also request the company pay for the test after the fact. Doubt that will happen.

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rnelson
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posted 01-18-2012 05:27 PM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
sounds correct.

the known loss sounds as if it is not yet the construction company's loss. it is the loss of their customer. that they are paying for it is not the point. the crime itself does not affect them. they corrective action does.

also, they would have to document the reasons for suspicion of each employee, and specify which employees had access. this is the basis for suspicion. here is the joke - if their were evidence that indicated a particular employee then the investigators would already have noted it and the person would be a suspect. in that case the police investigators would request the polygraph not the employer.

eppa appears to me to be intended to prevent the use of the polygraph with private businesses.


r

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Ted Todd
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posted 05-10-2012 04:56 PM Click Here to See the Profile for Ted Todd Edit/Delete Message
The information in this post is not correct. THERE DOES NOT NEED TO BE A DIRECT FINANCIAL LOSS. This very issue will be addressed and corrected at the fall CAPE seminar.

This test COULD have been done under EPPA.

Ted

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fidibus
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posted 05-10-2012 04:59 PM Click Here to See the Profile for fidibus Click Here to Email fidibus Edit/Delete Message
interesting

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Ted Todd
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posted 05-10-2012 05:24 PM Click Here to See the Profile for Ted Todd Edit/Delete Message
From the USDOL web site:

(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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Barry C
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posted 05-11-2012 09:29 AM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
No, Ted, it couldn't - unless you have a good reason to connect a specific person to the crime. A loss alone is not enough. Moreover, the point of the test is "...to show the site owners none of them stole the copper." Thus, they have no reasonable suspicion to believe they did it, and it doesn't appear as if there is an ongoing investigation. It seems the company has already concluded its investigation: they determined their employees are innocent. (It's only "ongoing" in the sense that it's an active whodunit.)

This is the best information I ever found on EPPA. It's probably what you cited:
http://www.compliance.gov/wp-content/uploads/2010/05/Polygraph.pdf

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Ted Todd
Member
posted 05-11-2012 08:05 PM Click Here to See the Profile for Ted Todd Edit/Delete Message
Barry,

It is a do-able test provided all of the other EPPA requirements were met. I do agree that you can't just go out on a fhishin' expedition. Examiners are to hung up on the "direct loss" issue.

Ted

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