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Author
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Topic: EPPA Discussion
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Ted Todd
Member
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posted 07-28-2004 11:57 AM
 
Here is some food for thought.As a police officer, another law enforcement agency brings a subject to me who is accused of stealing money from his employer. A criminal investigation is in progress. The police, not the employer, asked the guy to take a polygraph exam and he agrees. The guy comes up DI with no admissions. The investigating officer from the other agency tells the employer of the DI results and the employer fires the guy. The question(s) is: Did the employer violate EPPA? Did the investigating officer violate EPPA? Did I violate EPPA? TV O'Mally gave an opinion on this(He is the APA's "go to guy" on EPPA issues) and he said "Yes". He stated that the employer violated EPPA and so did the investigating officer by telling the employer. I am not sure if I am in violation or not ! He also said the investigating officer could be sued for the violation. This scenario has not happened to me but I am currious for your input on how you or your agency handles this sort of thing. I think we also need to think about requesting some EPPA training at our various seminars. Take care, Ted IP: Logged |
J.B. McCloughan
Administrator
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posted 07-28-2004 01:44 PM
I am not a lawyer but my opinion would be: 1. The employer violated EPPA if it based
its decision to fire the employee based
on the results of the polygraph. 2. The investigator violated EPPA by
divulging the results of the polygraph 3. You are the only one in the clear, so
long as you read the subject their
EPPA rights prior administering your
exam. Again, this is just my opinion. IP: Logged |
Bob
Member
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posted 07-28-2004 01:52 PM
Ted;
I’m certainly no expert in EPPA matters, although I will give you my ‘two cents.’
[1] Did you violate EPPA? No, as exemptions in EPPA allow the police to request a polygraph examination as part of their police investigation. (Although as a safeguard I advise the ‘police suspect’ of the existence of EPPA, and the general requirements/ penalties of the Act.)
[2] Did the investigating officer violate EPPA? Yes, by informing the Employer of the test results. (In the past when I have conducted a police requested exam on an ‘employee’ related loss, I write a blurb on the bottom of the report advising the investigating officer of EPPA and that severe civil penalties can be imposed if the test results are ‘shared’ with the employer. I suspect a lawsuit potentially could be directed at the investigating officer via the employer or employee for damages sustained.)
[3] Did the employer violate EPPA? Yes, by taking adverse action against the employee (apparently) based solely on the polygraph test results.
[4] Can you be dragged into the ‘mess’ ? Yes. Although I don’t see any ‘wrong doing’ , the cost of defending oneself to be absolved might be expensive now days.
[5] Should more training be given by the APA, Yes, and the APA is providing some training at the National APA Seminars, but just not fast enough and with supportive Court case law. More ‘case studies with relevant Court Case law’ would be of significant benefit to members and can be provided in the APA Newsletter. This forum at the Polygraph Place is an excellant location to ‘share’ EPPA experiences.Hope this is worth reading to you;
Bob IP: Logged |
Barry C
Member
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posted 07-28-2004 02:40 PM
Well, I'll add my two cents too, which really goes to show we do need more training on this topic.I just read the EPPA Act, and the way I read it, the employer is in trouble. The Act specifically states - under the heading of "Exemptions" (29 USC 2006 Sec. 7) - "(a) No APPLICATION TO GOVERNMENTAL EMPLOYERS.- This Act shall not apply with respect to the United States Government, any State or local government, or any political subdivision of a State or local government." As long as the police initiated the exam, i.e., they didn't do it at the request of the employer, but rather as part of their investigation, they wouldn't violate the Act, and they wouldn't need to alert the employee about the Act, etc. The polygraph examiner doing a (strictly) police exam should be in the clear. Even the investigator who told the employer the results doesn't appear to have violated the Act as it speaks only about what an EMPLOYER is prohibited from doing. (And, as a government employee, he'd be exempt.) It appears unwise, but not illegal, to inform the employer of the results. (It is illegal for the employer to ask about the results, and I would wonder why an investigator would volunteer the info.) If the examiner or investigator somehow put himself in the position of becoming some type of agent of the employer, there might very well be some trouble. (How one would do that I don't know, but I suspect some liberal judge or DOL investigator might find a way if the conditions were right. Clearly if the employer asked for a polygraph and the investigator set one up based on that request alone one could argue the test was not an exempt test, but one that falls under the Act. I'm not sure where that might leave an otherwise innocent and unsuspecting examiner.) Keep in mind any one of those involved could be named in a suit, and as stated, it might cost a lot of money to defend oneself - even when fully innocent! All this fluff is based on my reading of the Act itself. I have no idea how the Act has been interpreted (and twisted) by the courts, etc. IP: Logged |
sackett
Moderator
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posted 07-28-2004 03:20 PM
Ted, et al,I'm no legal mind (as you know), but would say that no violation of EPPA has occurred; with exception that the employer fired his employee based (what appears to be) solely on the results of the examination. Police may use polygraph (as you also know) to investigate criminal allegations. As such, you and the investigator are within your authority and without sin. The employer on the other hand better have insurance or good legal representation... Jim IP: Logged |
Ted Todd
Member
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posted 07-28-2004 05:05 PM
Thanks for all of the responses! I appriciate all of your input but I still think the we need to proceed with caution on these types of tests. TV O'Malley is the APA "expert" on EPPA and he says the officers DO have some liability exposure in this type of situation.I would think the best idea would be for the examiner to only release the results to the investigating officer and caution him about sharing the results with the employer. In other words, the examiner should stick to the "police investigation" and not involve himself with any employer/employee "issues". I don't know if this alone offers us any protection from an EPPA violation.???? There is a thread running on George's Anti-site right now on this issue. The guy was fired after failing a CVSA test with no admissions. It is worth a look. Ted [This message has been edited by Ted Todd (edited 07-28-2004).] IP: Logged |
CHSBOY
Member
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posted 07-29-2004 06:31 AM
This issue sounds like one recently posted on the flagship of antipolygraph sites. See: http://antipolygraph.org/cgi-bin/forums/YaBB.pl?board=share;action=display;num=1090177619
IP: Logged |
Barry C
Member
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posted 07-29-2004 07:45 AM
Does T.V. say the police have some type of liability under EPPA? If so, how? The Act doesn't indicate they do. Or, is he saying they might be liable under some type of tort action, e.g., negligence? I could see a better argument for that than some type of abstract EPPA violation. (As I said above, the Act itself does not prohibit the police from doing what they did in your hypo.)IP: Logged |
Ted Todd
Member
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posted 07-29-2004 09:13 AM
Barry, here is what Mr. O'Malley wrote in response to my question:"YES.
The employer is also in violation for inquiring/or hearing the result of the police administered EPPA test.
Hopefully he will be lucky but the violations are clear cut. This is one of the reasons that Police need to know more about EPPA. The examiner, even though he is an officer acting in an official capacity, can be sued civily for violating the examinee's rights under EPPA. The employer is already in violation."
Ted
[This message has been edited by Ted Todd (edited 07-29-2004).]
[This message has been edited by Ted Todd (edited 07-29-2004).] [This message has been edited by Ted Todd (edited 07-29-2004).] IP: Logged |
sackett
Moderator
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posted 07-29-2004 12:14 PM
Ted and/or T.V.,
I won't argue the fact the investigator should not have released the results to the employer, or that anyone can be sued in this country for anything. What I want to know is, where (exactly) did a police examiner, who, while acting in good faith, supporting a lawful and legal police investigation, violate the EPPA? Please type your response slowly, so I'll understand...(LOL) Jim IP: Logged |
ebvan
Member
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posted 07-29-2004 01:07 PM
As Slowly as I can type it.
N O
just kidding!It wasn't a test that falls under the jurisdiction of EPPA. It was done as part of a police investigation. As long as there was no subterfuge or intent to circumvent EPPA, the examiner did NOTHING wrong. Every polygraph report I have ever written has contained the following disclaimer "WARNING.
"The disclosure of any information contained in this report is prohibited, except as provided by law"
ebv
IP: Logged |
Ted Todd
Member
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posted 07-29-2004 03:02 PM
S a c k e t t ,G o o d t o h e a r f r o m y o u ! (ouch!) I like Ebvan's disclosure warning at the bottom of the report. It makes it very clear to all parties that the information is protected. It also shows that the author/examiner made the extra effort to warn the reader that the information is protected. I plan to include it in every report from here on! Ted [This message has been edited by Ted Todd (edited 07-29-2004).] [This message has been edited by Ted Todd (edited 07-29-2004).] IP: Logged |
AD
Member
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posted 07-29-2004 05:47 PM
Ebvan,Your right on with this one. This is a criminal police investigation and the polygraph offer was made by the police to the examinee to assist in their investigation. The employer did not request the polygraph. EPPA DOES NOT apply here at all. Although probably unethical, I can not find any rulings where the officer violated any law by releasing the test results to the employer. (Keeping in mind this case is exempt from EPPA guidelines) AD IP: Logged |
sackett
Moderator
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posted 07-30-2004 07:33 AM
Ebvan, Ted, et al,I LIKE IT! It provides a little CYA in a world ready to fry it. You will find that in my reports from now on, garonteed! Jim IP: Logged |
Barry C
Member
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posted 08-02-2004 09:03 AM
Ted,When T.V. says the officer can be sued for violating a person's rights under EPPA, in a roundabout way that might be true. Although he didn't violate the EPPA a law, the employer did, and the employer is liable for his own wrongdoings (under EPPA). The only way to get the police would be to file some type of civil action - apart from an EPPA action. An attorney might try to use EPPA (indirectly) in the civil action, but I can't think of a tort action - except some type of negligence on the part of the person who disclosed the results to the employer - that would stick. But, as has been said, anybody can sue anyone for most anything, but that doesn't mean the plaintiff would win. The bottom line: I like the warning above. It would appear to distance the examiner from an officer who foolishly discloses results in this type of situation, which would be a great defense (I think) in a civil action. IP: Logged |
Ted Todd
Member
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posted 08-02-2004 05:04 PM
Thanks for all the great input guys! I really value your opinions. The CYA disclaimer has been added and will be used on all future reports.Thanks again, Ted IP: Logged |
sackett
Moderator
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posted 08-03-2004 07:11 AM
Ted, et al,I've already started to use it. I put it in the "footer" of each page of every report. I have a big butt to cover, don't ya know... Jim IP: Logged |
ebvan
Member
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posted 08-03-2004 08:52 AM
DARN IT!! I should have copyrighted that phrase, like Trump is trying to do with "Your Fired" OH WELL... another zillion dollar opportunity missed. ------------------
but then, that's just one man's opinion
IP: Logged | |
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