The Eleventh Circuit Court of Appeals recently issued a decision addressing an employer’s requirements under the Employee Polygraph Protection Act of 1988 (EPPA).  The decision, Cummings v. Washington Mutual, is the first in recent memory from a court with jurisdiction over Florida.

Before discussing the case, we provide a quick refresher on EPPA.  Generally, the statute prohibits employers from requesting, requiring, suggesting or causing any employee to take or submit to any lie detector test.  One of the few exceptions to EPPA permits an employer to request an employee to submit to a polygraph test if:

  1. The test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage;
  • The employee had access to the property that is the subject of the investigation;
  • The employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and
  • The employer executes a statement, provided to the examinee before the test, that among other things, sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees, including identification of the specific economic loss or injury, a statement that the employee had access to the property, and a statement describing the basis for the employer’s reasonable suspicion.

Under the ongoing investigation exemption, the employer may use the results of the polygraph test (or the refusal to take the polygraph examination) to discipline, discharge or otherwise adversely impact the employee only if additional supporting evidence exists.  Additional supporting evidence may consist of evidence indicating that the employee had access to the missing or damaged property that is the subject of the ongoing investigation, evidence leading to the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation, or admissions or statements made by an employee before, during or following a polygraph examination.

In the Cummings case, the banking center where the plaintiff had been the manager suffered a $58,000 shortage.  The money was missing from two teller drawers, both of which the plaintiff had access to during his stint as branch manager.  Video surveillance footage suggested that the plaintiff and other employees repeatedly violated the bank’s dual control policy, which required two people to be present when cash was handled or certain secure areas were accessed.  Several bank employees told the bank that the plaintiff had repeatedly violated the dual control policy.  The bank asked the plaintiff to take a polygraph examination and, when he refused, the bank terminated his employment.  The plaintiff sued under EPPA, claiming that there was no ongoing investigation and that the bank had no reasonable suspicion that he was involved in the missing $58,000.

The court rejected the plaintiff’s arguments.  The video surveillance and testimony from employees that the plaintiff had violated the dual control policy provided sufficient additional evidence that the shortage of money was the result of intentional wrongdoing and that the plaintiff was involved in the loss to justify the polygraph test.  Under the totality of circumstances, the bank was reasonable in suspecting the plaintiff’s involvement in the loss.  The bank therefore complied with EPPA and the trial court was correct to enter summary judgment for the employer.

Although the employer prevailed in Cummings, employers should very carefully consider whether, in an at-will state such as Florida, it is worth administrating a polygraph test, both because of the difficulty in complying with the technical requirements of the EPPA and the added legal liability for failing to do so.