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Employee polygraph protection act prohibits mandatory arbitration

Employee polygraph protection act prohibits mandatory arbitration
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Harmon v CB Squared Services Inc,___F.Supp. 2d___ (E.D. Va. January 29, 2009), is an interesting case. The court held that a plaintiff asserted a valid claim under the Employee Polygraph Protection Act (EPPA) and thus was entitled to proceed to trial on allegations that his employer unlawfully caused him to take a polygraph examination, failed to provide him with documents required under the Act, and terminated him based on the test's results.

The court rejected the employer's contention that the complaint should be dismissed because the employee had agreed to submit to mediation or arbitration any legal claims stemming from his employment. The EPPA expressly prohibits the waiver of a plaintiff's procedural right to bring suit in federal court for an alleged violation.

Mitchell H. Rubinstein

NYPPL Comments: In Ost v Town of Woodstock, 251 A.D.2d 724, one of the issues raised was the admission of testimony concerning a polygraph [lie-detector] test during a Section 75 disciplinary hearing. Shawn Ost, a Town of Woodstock police officer, was terminated from his position for allegedly using his police vehicle to "give a young civilian woman a ride to her home outside the geographical boundaries of the Town, without authorization and subjected her to unwanted sexual contact." Ost argued that the disciplinary hearing "was tainted by the admission of testimony regarding a polygraph test" of the [young woman] involved in the incident. The Appellate Division said that such testimony may be considered in a Section 75 disciplinary hearing "if it is otherwise material and relevant, so long as there is ... as there was in this instance ... substantial evidence of the reliability of the machine and the qualifications of the operator." As to Ost's complaint that "he was not offered an opportunity to take a similar test," the court commented that although Ost indicated that he would be willing to submit to such an examination, he never asked for a test to be scheduled or take any steps to arrange for one on his own.

See also, Motell v Napolitano, 588 NYS2d 452, in which the Appellate Division ruled that the disciplinary hearing officer did not err as a result of allowing the results of the polygraph test to be introduced as evidence. The court said that where the record contains substantial evidence of the reliability of the polygraph machine used and the qualifications of the person administering the test, evidence of the results of such an examination may be considered by the hearing officer in a disciplinary proceeding.

Full post as published by New York Public Personnel Law on March 03, 2009 (boomark / email).