A recent case addresses legal concerns-
Mennen v. Easter Stores, 951 F. Supp. 838 (N.D. Iowa 1997)
Article summary. Churches occasionally recommend that employees take a polygraph test as a means of resolving accusations of misconduct. A federal law enacted by Congress in 1988 protects many employees from employer requests to take such tests. A recent federal case addresses the application of this law. While the case involved a secular business, it has direct relevance to churches. This feature article reviews this case and its relevance to church leaders
Have you ever considered the use of a polygraph test to resolve an internal church problem? If so, you are not alone. A number of churches have used such tests in the past, and each year many other churches consider doing so. Consider the following examples:
• Example. Church offerings are much higher when the church’s bookkeeper is on vacation. The pastor and church board suspect that the bookkeeper has embezzled funds. The board confronts the bookkeeper, who vigorously denies any wrongdoing. The board is considering asking the bookkeeper to take a polygraph examination.
• Example. A 10—year—old child informs her mother that a Sunday School teacher improperly touched her. The mother informs her pastor, who confronts the teacher. The teacher denies any wrongdoing. The church board is not sure how to proceed. One member suggests that the teacher be asked to take a polygraph exam.
• Example. A former member sues a church, alleging that the pastor seduced her in the course of a counseling relationship a few years ago. The pastor adamantly denies any wrongdoing. The woman’s attorney has her submit to a polygraph exam, which indicates that the woman is telling the truth. The woman’s attorney says that she will drop the lawsuit if the pastor is tested by the same polygraph examiner and is found to be telling the truth. The pastor refuses to do so, insisting that he does not need a test to prove that he is telling the truth. The church board urges the pastor to reconsider, and to take the exam.
• Example. A church adopts an employee handbook that prohibits various kinds of conduct, including use of alcoholic beverages. Over the past several months, a number of members inform the pastor that they have seen a church employee consuming alcoholic beverages. The employee is confronted, and she denies the allegations. The pastor suggests that she take a polygraph exam.
Many church leaders are unaware that a federal law enacted by Congress in 1988 may limit their ability to require or even suggest that employees take a polygraph exam. Church leaders should never suggest, recommend, or require that an employee take a polygraph exam without ensuring that they are in compliance with the law. A recent federal court decision provides helpful guidance on the application of this law. This article will review the facts of the case, summarize the court’s ruling, and evaluate the relevance of the case to churches.
In 1992, during regular business hours, a thief stole $261 in cash from a grocery store. The money was taken from a cash register, and the store’s manager as well as the police believed that the person who stole the money was a store employee with access to that register. On the date of the theft, there were only two employees who had access to the cash register in question-the grocery manager and a young female cashier. The police later asked these two employees if they would submit to a polygraph exam. The grocery manager was advised that he did not have to take the exam, but he consented because he believed that it was the only way to “clear his name.” The cashier also consented to the exam. The store manager decided to refrain from taking any action against either employee until he received the results of the exams. The results of the grocery manager’s polygraph exam indicated that he exhibited emotional distress and “deception” and as a result did not pass the exam. On the other hand, the cashier’s polygraph results demonstrated that she told the truth to the best of her knowledge and belief.
A detective informed the store manager of the polygraph results. The detective stated that he believed that the grocery manager was guilty but that the police had decided not to prosecute because they did not believe they could establish guilt beyond a reasonable doubt. The store manager responded to this information by reassigning the grocery manager to a “stocker” position, thereby barring him from any cash handling and managerial duties. However, neither his wages nor hours were reduced. While he was not directly threatened with termination, he was told that his honesty and integrity would always be in question, and that he should begin “looking for other employment”. Distraught over his demotion and feeling that his future with the store was gone and that he would never be promoted or transferred to another store, the former grocery manager resigned. He later sued his former employer for violating his rights under the federal Employee Polygraph Protection Act and the Iowa Polygraph Act. He claimed that he was demoted based upon the polygraph examination results released to his employer. The store responded by asserting that it merely cooperated with police authorities who requested that the grocery manager take a polygraph examination. In addition, the store insisted that it did not base its decision to demote the grocery manager solely on the basis of his polygraph examination. Rather, it had already lost confidence in his work and planned to alter his employment status with the store regardless of the results of the polygraph exam.
The court’s decision
What is a polygraph? The court answered this question as follows:
The polygraph is a machine that simultaneously measures a series of physiological responses to a series of relevant and irrelevant questions. The basic theory underlying the polygraph is that a subject’s honesty, dishonesty, or guilty knowledge can be judged from those physical responses that are scientifically related to emotional upset. The reason for attributing relevance to those responses is based upon the scientific understanding that guilt is a learned response that causes inner conflict and emotional upset. The tension associated with the inner conflict of choosing between willful dishonesty and truthfulness is presumed to be measurable by recording changes in inherent body functions. The polygraph does not directly measure whether the subject is either lying or telling the truth. Rather it merely records the physiological changes that occur as the subject responds to a series of questions requiring simple “yes” or “no” answers.
The court provided the following review of the history of the polygraph exam:
Since its invention in the late 1920s, the polygraph has been the subject of debate …. As the use of this machine increased in various legal and business sectors, the debate intensified, not only over the accuracy of the results of polygraph examinations, but over the use and abuse of these tests in the private employment sector. Initially developed as an adjunct to criminal investigations within the law enforcement community, polygraphs rapidly became part of routine testing and screening in the workplace, and employers, particularly those confronted with losses from employee theft, quickly adopted lie detectors as an expedient and inexpensive solution. Thus, the explosive growth in polygraph tests, coupled with the rampant, unregulated use of these tests in the private employment sector, prompted Congress to address the need for federal regulation of polygraph testing in the workplace …. [A congressional committee] found many employers and polygraph examiners abused and manipulated the testing process and “frequently used inaccurate or unfounded results to justify employment decisions which otherwise would be suspect.” While noting that this abuse was not true of all employers or examiners, the committee found that it was “sufficiently widespread to warrant congressional action.”
In the ongoing or apparently ceaseless conflict between the employee’s right to privacy and the employer’s right to protect its business, Congress, as opposed to the state legislatures and courts, became the principal battleground for the fierce debate regarding the use of polygraph testing in the workplace …. In discussing the potential parameters of federal regulation of polygraph use in the private employment sector, Congress considered arguments from representative warriors from each side of the battlefield. Proponents of polygraph use in the workplace cited the polygraph as a valuable tool necessary to ensure an honest, dependable workforce. These advocates claim that the threat of the polygraph examination acts as a deterrent to employees, that it is no less accurate than the methods used in many subjective employment decisions, and that the test can also be an avenue for innocent employees seeking to exonerate themselves from wrongful accusations. On the other hand, those who advocate the employee’s right to privacy contend that the probing of someone’s body for the purpose of determining whether he or she is telling the truth is “inherently offensive to civil rights.” After weighing these competing interests and conducting various hearings on this issue, Congress ultimately passed the Employee Polygraph Protection Act in 1988.
The Employee Polygraph Protection Act-what it says
The Employee Polygraph Protection Act (EPPA), which was enacted by Congress in 1988, prohibits any “employer” (defined as an employer “engaged in or affecting commerce”) from doing any one of the following three acts:
(1) directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test
(2) to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee
(3) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against-(A) any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test, or (B) any employee or prospective employee on the basis of the results of any lie detector test ….
A church is subject to the Act if it is “engaged in or affecting commerce.” There is no requirement that an employer have a minimum number of employees. There is no doubt that many churches are engaged in or affect commerce. Examples include churches that (1) sell tapes, books, or other products across state lines; (2) engage in radio or television broadcasts; (3) make substantial purchases from out—of—state vendors. Some courts have suggested that the operation of a “web page” on the internet may implicate a church or other employer in commerce. In summary, the test of “engaged in or affecting commerce” is complex and in some cases uncertain. If there is reasonable doubt, churches should “play it safe” and assume that they meet the test.
An important exception-for “ongoing investigations” into employee theft
The Act contains a few narrow exceptions. Of most relevance to church leaders is one that permits employers to ask employees to submit to a polygraph exam if they are suspected of theft and there is an ongoing investigation. Here are the details of this exception:
[This Act] shall not prohibit an employer from requesting 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;
(2) the employee had access to the property that is the subject of the investigation;
(3) the employer had a reasonable suspicion that the employee was involved in the incident or activity under investigation; and
(4) the employer executes a statement, provided to the examinee before the test, that-(A) sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees, (B) is signed by a person (other than a polygraph examiner) authorized to legally bind the employer, (C) is retained by the employer for at least 3 years, and (D) contains at a minimum-(i) an identification of the specific economic loss or injury to the business of the employer, (ii) a statement indicating that the employee had access to the property that is the subject of the investigation, and (iii) a statement describing the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation.
The employer did not improperly request the employee take the exam
The court concluded that the employer had not violated the Employee Polygraph Protection Act, because it did not “require, request, suggest, or cause” the grocery manager to take the exam. Rather, the court pointed out that the police administered the exam and shared their findings with the store. The court noted that the store’s “passive cooperation” with the police did not amount to a violation of the Act. It conceded that an employer can violate the Act if its cooperation with the police in administering a polygraph exam is “active.”
• Key point. Department of Labor regulations specify that “allowing a test on the employer’s premises, releasing an employee during working hours to take a test at police headquarters, and other similar types of cooperation” with the police are not the kinds of “active cooperation” that violate the Act.
The employer “used” the polygraph exam
The Act not only forbids employers from “requiring, requesting, suggesting, or causing” an employee to take a polygraph exam, but it also forbids employers from using exam results. The court concluded that the store violated this standard since it based its decision to demote the grocery manager, at least in part, on the polygraph exam results.
The store argued that it could have relied on the “ongoing investigation” exception (summarized above), and so it should not be found to be in violation of the Act by using the exam results. The court disagreed. It conceded that the ongoing investigation exception was available to the store, but it stressed that the store failed to comply with the specific requirements of that exception: “The court is not willing to circumvent the explicit requirements of the statute to provide [the store] with the protection it could have had in the first place had it followed the law.”
The store could have dismissed the employee prior to the exam
The court acknowledged that the grocery manager may have committed the theft, and that the store could have fired him on the basis of its mere suspicion that he was guilty:
The irony of this case is that [the grocery manager] may well have committed the theft … Perhaps even more ironic is that [the store] could have discharged [him] prior to any polygraph examination simply based upon a mere suspicion that he committed the theft, and the court would have deferred to [its] decision ….
However, instead of exercising its business judgment to discharge [him] when it suspected him of the theft, [the store] did nothing until it received the polygraph results. [It] overlooked two opportunities to discharge or discipline [him] legally: first, by failing to discharge him upon its initial suspicion after the theft but before the request for the polygraph examination was made, and second, by failing to follow the guidelines set forth in the ongoing theft exemption under [the Act].
The court acknowledged that the store waited until it received the exam results to discipline the grocery manager so that its decision would be based on more than mere suspicion. But it concluded that “this is a choice Congress clearly foreclosed when it passed the EPPA.”
Significance of the case to churches-a helpful checklist
If an employee in your church is suspected of misconduct, do not suggest or even mention a polygraph exam without first considering the following:
1. Does the Employee Polygraph Protection Act apply to our church? The Act applies to any employer that is “engaged in or affecting commerce.” No minimum number of employees is required. If your church satisfies any one or more of the following, you should assume you are engaged in commerce:
- operate a private school
- significant purchases of supplies, literature, and equipment from out—of—state vendors
- sell products (such as literature or tapes) to persons or other churches in other states
- several persons from other states attend your church
- operate a “web page” on the internet
- operate an unrelated trade or business
- engage in television or radio broadcasts
• Key point. Even if your church does not satisfy any of these factors, it still may be deemed to be engaged in commerce and therefore subject to the EPPA.
2. Know what the law forbids. If you determine that your church is subject to the Employee Polygraph Protection Act, then the following prohibitions apply:
- You cannot “require, request, suggest, or cause any employee or prospective employee to take a polygraph exam.
- You cannot “actively participate” with the police in administering a polygraph exam to an employee. You can engage in “passive cooperation.” This includes allowing the police to conduct an exam on your premises, or releasing an employee during working hours to take a test at a police station.
- You cannot “use, accept, refer to, or inquire concerning the results” of a polygraph exam.
- You cannot discharge, discipline, discriminate against, or deny employment or promotion to an employee or applicant for employment on the basis of (1) a refusal to take a polygraph exam, or (2) the results of a polygraph exam. Nor can you threaten to do so.
3. Know the details of the “ongoing investigation” exception. Under very limited circumstances, you can request that an employee take a polygraph exam if you suspect the employee of theft and you are conducting an ongoing investigation. Do not rely on this exception without fully complying with all of the requirements quoted above. Also, consult with legal counsel to be sure the exception is available to you.
• Example. A church board suspects the church’s volunteer treasurer of embezzling several thousands of dollars of church funds. The treasurer is called into a board meeting, and is told “you can clear your name if you submit to a polygraph exam.” Does this conduct violate the Employee Polygraph Protection Act? Possibly not. The Act only protects “employees,” and so a volunteer treasurer presumably would not be covered. However, if the treasurer receives any compensation whatever for her services, or is a “prospective employee,” then the Act would apply. Because of the possibility that volunteer workers may in some cases be deemed “employees,” we recommend that you not suggest or request that they take a polygraph exam without the advice of legal counsel.
• Example. Same facts as the previous example, except that the church suspects a full—time secretary. Can it suggest that the secretary take a polygraph exam? Only if all the requirements of the “ongoing investigation” exception apply. These include: (1) the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft or embezzlement; (2) the employee had access to the property that is the subject of the investigation; (3) the employer had a reasonable suspicion that the employee was involved in the incident or activity under investigation; and (4) the employer executes a statement, provided to the examinee before the test, that-(A) sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees, (B) is signed by a person (other than a polygraph examiner) authorized to legally bind the employer, (C) is retained by the employer for at least 3 years, and (D) contains at a minimum-(i) an identification of the specific economic loss or injury to the business of the employer, (ii) a statement indicating that the employee had access to the property that is the subject of the investigation, and (iii) a statement describing the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation.
4. Know the consequences of violating the Act. The EPPA provides that an employer that violates the Act is liable to the employee or prospective employee for “such relief as may be appropriate, including, but not limited to, employment, reinstatement, promotion, and the payment of lost wages and benefits.” A court may also award damages based on “emotional distress,” and punitive damages.
• Key point. Damages awarded for violating the Employee Polygraph Protection Act may not be covered under a church’s liability insurance policy. This is another reason for church leaders to assume that the Act applies to their church, and to interpret its provisions prudently.
© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m43 m86 c0697