Stop, Thief! Polygraph Testing and Workplace Theft

The Employee Polygraph Protection Act regulates (and restricts) the use of polygraph tests in the workplace. For example, it prohibits an employer from disclosing to anyone an employee’s polygraph results without the employee’s consent, and also prohibits an employer from taking an adverse action against an employee based on the results of a polygraph.

Bass v. Wendy’s of Downtown, Inc. (N.D. Ohio 5/1/12) discusses the limits of both of these prohibitions. More importantly, however, this case raises a more practical question about the use of polygraphs in the workplace.

In 2007, a cash deposit went missing from Wendy’s. As part of its investigation, Wendy’s asked Donald Bass to submit to a polygraph examination, which he failed. Despite the failed test, Bass continued to work for Wendy’s as a part-time employee. More than two years later, Wendy’s passed over Bass for a promotion to general manager. A few months later, it fired him for inappropriately touching a female employee.

Bass claimed that Wendy’s violated the EPPA by: 1) disclosing the results of his 2007 polygraph to the Ohio Civil Rights Commission in support of its position that the store did not discriminate against him; and 2) relying on the 2007 polygraph to deny him the promotion.

The court dismissed both claims:

• The court dismissed the wrongful disclosure claim because Bass could not articulate how he had been damaged by the statement to the OCRC.
• The court dismissed the failure-to-promote claim because Wendy’s would have denied him the position even if he had not failed the polygraph.

Here’s my question. If Bass failed a polygraph in 2007, why was he around years later to grope a female employee and claim discrimination? If you are going to jump through all of the legal hoops necessary to use a polygraph to confirm an employee’s theft, use the results. As this case shows, nothing good comes from retaining an employee who steals from you.

To visit the Ohio Employer’s Law Blog, click here or email jth@kjk.com or call (216) 736-7226.