DATE: April 13, 1995
CASE NO. 91-EPP-6
IN THE MATTER OF
SCRIVENER OIL COMPANY, and
RICHARD SCRIVENER,
RESPONDENTS.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
This matter is before me at the request of the Office of the
Solicitor, United States Department of Labor, counsel for the
Administrator of the Wage and Hour Division (Administrator). The
Administrator is seeking to modify or vacate the Decision and
Order (D. and O.) of the Administrative Law Judge (ALJ) in this
case, which arises under the Employee Polygraph Protection Act
(EPPA or Act), 29 U.S.C. § 2001-2009 (1988), and the
implementing regulations at 29 C.F.R. Part 801 (1994). For the
reasons given below, the ALJ's decision is vacated and the case
is remanded for the limited purpose of determining an appropriate
civil money penalty to be assessed against the Respondents,
Scrivener Oil Company and Richard Scrivener (Scrivener).
BACKGROUND
The EPPA prohibits most private employers from using lie
detector tests either for pre-employment screening or during the course of employment. Polygraph tests are permitted under
limited circumstances subject to certain restrictions. [1]
Section 7(d) of the Act, 29 U.S.C. § 2006(d), provides
a limited exemption from the general prohibition on lie detector
use in private employment settings, for employers conducting
ongoing investigations of economic loss to the employer's
[PAGE 2]
business. An employer, pursuant to an ongoing investigation, may
request an employee to submit to a polygraph test, provided there
is strict adherence to the conditions set forth at Sections 8 and
10 of the Act, 29 U.S.C. §§ 2007 and 2009, and the
regulations at 29 C.F.R. §§ 801.12, 801.20, 801.22-.26,
and 801.35. [2]
For the exemption to apply the ongoing investigation must be
of a specific incident involving economic loss to the employer's
business, the employee requested to submit to the test must have
had access to the property that is the subject of the
investigation and the employer must have a reasonable suspicion
that the employee was involved in the specific incident under
investigation. The rights of the examined employee are set forth
in the Act at § 2007(b) and in the regulations at
§§ 801.22-.25. Both the Act and the regulations
provide that an exemption shall not apply unless all of the
requirements of the employee's rights are met. 29 U.S.C. §
2007(b); 29 C.F.R. § 801.22(a).
The ALJ's findings of fact and the parties' stipulations of
fact are uncontroverted. Scrivener was an employer engaged in or
affecting commerce as defined in the Act, subjecting it to
coverage under the Act. The company was involved in the
wholesale and retail distribution of fuel oil and in operating
eight convenience stores in southwestern Missouri. Richard
Scrivener is the president and 100% shareholder in the company.
Deana Box had been employed as an Assistant Manager at the
store in Mansfield, Missouri. On January 26, 1992, after Box was
the sole employee on her shift, she was unable to account for a
shortage of $134.92 in cash receipts. Scrivener investigated the
discrepancy during the next three months. Scrivener asked Box to
submit to a polygraph test conducted on April 25, 1992.
The parties stipulated that Respondents satisfied all of the
test administration criteria set forth at 29 U.S.C.
§§ 2007(b)(1-3) and 2007(b)(5). These sections pertain
to the requirements concerning the overall rights of an examinee,
the pretest phase, the actual testing phase and the
qualifications and requirements of the examiner. D. and O. at 3.
At contention is whether the Respondents met the requirements of
29 U.S.C. § 2007(b)(4) which pertain to the post-test phase
of the process. The Act at § 2007(b)(4) entitled Post-test phase
provides:
Before any adverse employment action, the
employer shall-
(A) further interview the examinee on the basis of
the results of the test; and
(B) provide the examinee with-
(i) a written copy of any opinion or
conclusion rendered as a result of the test,
and
[PAGE 3]
(ii) a copy of the questions asked during the
test along with the corresponding charted
responses.
(Emphasis supplied).
Scrivener testified that on or about April 27, 1992, a day
or two after Box took the polygraph test, he learned the result
of the test by phone from the test examiner. He then called Box
and told her that he was "unhappy" with the test result, and
after she denied taking the money, he suspended her from her job
"to figure out the proper procedure to follow and to review the
questions and to talk to [the store manager] Patsy." Transcript
(Tr.) at 162. A copy of the test questions, but not the
corresponding charted responses (which are the examination charts
recording the examinee's physiological responses to the
questions), was sent to Box on May 11, 1992. Tr. at 183.
Scrivener testified that he sent a note to Box, along with the
test questions, stating "Please call me if you wish to discuss
this." Box did not respond, nor did Scrivener initiate any
further communication with her. Tr. at 163-164. Box was
replaced on May 18, 1992. Tr. at 183. DISCUSSION
The ALJ found that Respondents showed "entitlement to
conduct a polygraph examination as part of an ongoing
investigation." D. and O. at 9-10. The ALJ also found that the
Administrator "failed to proffer colorable evidence causally
linking the disciplinary action with the polygraph examination."
D. and O. at 6.
The ALJ erred in both respects. Most significantly,
Scrivener was not entitled to an exemption under § 2006(d)
since the post-test phase requirements at § 2007(b)(4) and
the regulations at 29 C.F.R. § 801.25(2) were not met.
Scrivener testified that he suspended Box from her job at the
time of his April 27th telephone call to her. This occurred
before Box received a written copy of the test examiner's opinion
and the questions used during the test. Scrivener also testified
that he never sent the corresponding charted responses to Box
because he never received them from the test examiner. Tr. at
163, 183. Therefore, an adverse action, Box's suspension
from her job, occurred prior to her receipt of the required
documents, in violation of the post-test phase requirements. The
failure to send Box the rest of the required documentation
likewise violated a required element of the statute. I agree
with the ALJ that, pursuant to the ongoing investigation
exemption, Respondents were entitled to administer a polygraph
examination. However, since the Respondents failed to follow the
post-testing requirements of
[PAGE 4]
the Act and the regulations, that exemption was nullified.
I disagree with the ALJ's determination that there
was no colorable linkage between the adverse action and the
result of the polygraph test. Scrivener testified that he called
Box on the same day he learned of the test result. Tr. at 161-
62. Box's suspension occurred so soon after Scrivener's learning
of the test result as to justify an inference that the test
result was the likely reason for the suspension. In the
Matter of State Employees Credit Union, Case No 93-EPP-9,
Sec. Dec. and Order, issued Mar. 31, 1995.
See Couty v. Dole, 886
F.2d 147, 148 (8th Cir. 1989) (retaliatory
discharge under the "whistle-blower" protection provisions of the
Energy Reorganization Act is established showing causality
through temporal proximity).
While Scrivener could have discharged Box merely on the
grounds of the excessive cash shortage, once he elected to use a
polygraph examination to determine her possible involvement in
the shortage, Box was entitled to certain specific protections.
These protections were not afforded her, and that failure is the
basis for the determination of a violation of the EPPA.
Because I am reversing the ALJ's determination that
Scrivener did not violate the EPPA, the case is remanded to him
to determine an appropriate remedy pursuant to 29 C.F.R.
§ 801.67(b). The ALJ
should be guided by 29 C.F.R. § 801.42(b) and the discussion
concerning the appropriateness of civil money penalties in
State Employees Credit Union at 6, in formulating this
determination. ORDER
The ALJ's June 18, 1992, Decision and Order IS VACATED.
This case IS REMANDED to the ALJ for the limited purpose of
determining an appropriate civil money penalty to be assessed
against the Respondents.
__________________________
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] A polygraph utilizes a series of devices which measure and
record changes in an examinee's blood pressure, alterations in
respiratory patterns and changes in the electrical conductivity
of the skin through perspiration. Although a polygraph can
measure physiological changes which are indicative of stress, it
cannot determine the causes of the stress. See S.
Rep. No. 284, 100th Cong., 2d Sess. 41 (1988),
reprinted in 1988 U.S.C.C.A.N. 726, 729.
[2] A further discussion concerning the exemption for employers
conducting investigations of economic loss or injury can be found
at 29 C.F.R. § 801.12.
