It is a Violation of Federal Law for an Employer to Require an Employee to take a Polygraph…No Lie!

It is a Violation of Federal Law for an Employer to Require an Employee to take a Polygraph…No Lie!

August 29, 2017

By Eric G. Marttila

Nearly 30 years ago, on June 27, 1988, President Ronald Reagan signed the Employee Polygraph Protection Act (EPPA or Act).  The Senate Report, which led to the law’s enactment, indicated 1) that the American Medical Association had concluded that, statistically, polygraphs can provide accurate evidence of deception or dishonesty in people only somewhat better than chance; and 2) that a minimum of 400,000 honest workers were then being wrongfully labeled deceptive and suffering adverse employment consequences each year.  In order to minimize the chances for such wrongful adverse employment actions, Congress passed – and President Reagan signed – the EPPA into law.

As used in the Act [the EPPA is found at 29 USCS §§ 2001 et seq.], the term “employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee. The term “lie detector” includes a polygraph — or any other similar device — that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.

The Act enumerates the following prohibitions on lie detector use, with certain very limited exceptions:

. . . it shall be unlawful for any employer engaged in or affecting commerce or in the production of goods for commerce—

  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—
    • any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test, or
    • any employee or prospective employee on the basis of the results of any lie detector test . . .

Where an employer violates the Act, private civil actions for those violations are authorized.  Such an employer shall be held liable to the employee or prospective employee for such legal or equitable relief as may be appropriate — including, but not limited to, employment, reinstatement, promotion, and the payment of any lost wages and benefits.  Such an action to recover damages may be maintained against the employer in any Federal or State court, but must be commenced no more than 3 years after the date of the alleged violation.  Additionally, the court, in its discretion, may allow the prevailing party reasonable costs, including attorney’s fees.

However, as stated, the Act does provide certain limited “exemptions” or exceptions to the applicability of the prohibitions, including one for “ongoing investigations.” The EPPA does 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, or misappropriation; 2) the employee had access to the property that is the subject of the investigation; 3) the employer has 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, among other things, provides particular details regarding the specific incident or activity being investigated, and sets forth the basis for testing that employee.

Of course, the aforementioned “limited exemption” is, by definition, limited.  By its very clear terms, it does not relieve the employer from any of the other enumerated requirements of the Act.  For example, there is not an unlimited exemption with respect to an employer’s use, acceptance, reference to, or inquiry concerning, the results of a lie detector test.  Similarly, there is not an exemption for an employer’s threatening to discharge an employee should he refuse, decline, or fail to take a lie detector test.

Furthermore, and quite significantly, the Act places stringent restrictions on the use of such exemptions.  It requires that, during the pretest phase, the employee or prospective employee be provided with reasonable written notice of the date, time, and location of the test, as well as of his or her right to obtain and consult with legal counsel or an employee representative before each phase of the test; be informed in writing of the nature and characteristics of the tests; and be informed, in writing as to whether any cameras or other devices for observation will be used and whether any additional recording or monitoring of the test will take place.

Importantly, an employee or prospective employee must be read – and must sign — a written notice that he or she cannot be required to take the test as a condition of employment; must be provided an opportunity to review all questions to be asked during the test and be informed of the right to terminate the test at any time; and must be advised of his or her legal rights and remedies if the polygraph is not conducted in strict accordance with the Act.  The Act also imposes very specific requirements with respect to the qualifications, and other professional obligations, of the prospective polygraph examiner.  Finally, the Act prohibits the disclosure of information obtained during a polygraph examination.  Generally speaking, a person, other than the employee or prospective employee, may not disclose information obtained during a polygraph test except under limited circumstances.

With regard to those “exemptions” from the Act, therefore, Congress created a limited exemption for an ongoing investigation of an employee’s theft. It was the legislative intent that this exemption be narrowly construed and subject to careful restrictions and conditions. Thus, the employer seeking application of any “ongoing investigation” exemption in implementing a polygraph test must provide the tested employee with the procedural safeguards specified. What is clear is that, even under those circumstances, if the employer fails to provide the required information in order to qualify for the exemption, it cannot find safe haven from liability – and exposes itself to civil liability.

Accordingly, employers need to know their obligations under the law — and employees need to know what their rights are when confronted with such an uncomfortable situation.

If you have any questions, please contact Eric G. Marttila at 215-345-8888 or via email at emarttila@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Protz: Recent Supreme Court Ruling is Game Changer for Pennsylvania Workers’ Compensation Claims

August 17, 2017By Linay L. HaubertOnce a Pennsylvania workers’ compensation claimant qualifies for wage benefits, that claimant is generally entitled to continue receiving these wage benefits until her or his right to wage benefits ends or is modified either by (1) agreement of the parties (usually in the form of a settlement) (2) a Decision from a Workers’ Compensation Judge, or (3) operation of law (such as the death of the claimant).Until recently, there was another method by which a  Pennsylvania employer could seek to cap wage benefits to otherwise payable to an injured worker.   Pursuant to Section 302(a) of the Pennsylvania Workers’ Compensation Act (WCA), an employer could seek a medical opinion that the claimant’s work-related injuries left the claimant with less than a fifty percent (50%) full body impairment pursuant to impairment guidelines established by the American Medical Association (AMA).  In practical terms, anything less than a catastrophic work injury results in a finding of a less than 50% full body impairment.   Once this finding was made, the employer could take steps seeking to cap the injured worker’s wage benefits to five hundred (500) weeks from the date of the medical examination in question.  Effectively, Section 302(a) provided Pennsylvania employers with a valuable tool to cap their wage liability to injured workers.On June 20, 2017, the Pennsylvania Supreme Court decided the case of Protz v. Workers’ Compensation Appeal Board (Derry Area School District).  In Protz, the Court declared that the impairment rating (IRE) provisions of the WCA are unconstitutional as drafted.  The ruling represents a significant loss in the Pennsylvania insurer and employer’s ability to reduce workers’ compensation exposure.Technically, the Protz Court held that section 302(a) of the Act represented an unconstitutional delegation of legislative authority.  Section 302(a) was promulgated as part of the sweeping cost cutting amendments to the WCA, know as Act 57 of 1996.  The law, as drafted, provided that employers and insurers were permitted to demand that a Claimant undergo an impairment rating evaluation by a physician using “the most recent edition” of the AMA Guides to the Evaluation of Permanent Impairment.  77 P.S. Sec. 511.2(1).    The IRE also provided objective justification for establishing settlement values and thereby facilitated settlement of more claims by Compromise and Release.In declaring the provisions unconstitutional, the  Court reasoned that, in drafting the IRE provisions, the legislature failed to insert adequate standards  to “guide and restrain the exercise of delegated administrative functions”. Protz.  In other words, the Act, as drafted, gave the AMA the unbridled authority to create a new standard each time the AMA guides were revised.  The most recent edition is now the 6th Edition.  The Court was careful to emphasize that the ruling was not intended to disparage the AMA, but instead to analyze the constitutional  parameters of delegating legislative authority.The immediate impact of Protz, on particular cases in litigation, or at various duration of the claim, will depend on how the ruling is applied.  It is likely to be applied in either a partially retrospective,  or a purely retrospective manner.  As a result, matters which are final will not likely be reopened. These matters  include those finalized by unappealed  final adjudication and order, including Compromise and Release, or those Claims extinguished by the statute of repose.   Matters which are not yet final, will likely find the partial disability characterization returned to total disability, and the claim will not be mitigated by the IRE provisions.There is potential grey area in application of Protz. Each circumstance, or category of circumstances, must be evaluated separately.  In spite of the grey, one thing is certain: Pennsylvania employers and insurers have lost a major claims mitigation tool.If you have any questions, please contact Linay L. Haubert at 215-345-8888 or via email at lhaubert@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation. 

10 High Swartz Attorneys Named Among ‘Best Lawyers in America’

Montgomery County and Bucks County Lawyers Listed Among Best in U.S., Two Listed as 2018 Attorneys of the Year in Real Estate and Municipal LawNORRISTOWN, Pa. (August 15, 2017) – High Swartz LLP, a full-service law firm with offices in Norristown and Doylestown, Pennsylvania, is pleased to announce that 10 of its attorneys have been named 2018 ‘Best Lawyers in America,’ and two have been named attorney of the year in real estate and municipal law.The High Swartz attorneys 2018 Best Lawyers in America, and the practice areas for which they have been recognized, are: Since it was first published in 1983, The Best Lawyers in America has become widely regarded as a respected reference guide to legal excellence. Best Lawyers lists are compiled based on detailed peer-review evaluations, and lawyers are neither required nor allowed to pay a fee to be listed. Votes were solicited from nearly 83,000 attorneys worldwide; 7.4 million votes were analyzed for the 2018 edition. The standalone Best Lawyers magazine will be distributed in more than 30 leading publications around the country, including The New York Times, The Philadelphia Inquirer, The Washington Post and The Wall Street Journal. A digital edition also will be available.High Swartz LLP is a general practice law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.# # #

Hey Boss, Give Me the Tips I Earned! Not So Fast.

August 8, 2017By James B. ShrimpThere is a common misconception that an employee that works for tips – e.g., restaurant and hotel workers –  are always entitled to the tips they earn.  However, this is not true if the employer pays you at least minimum wage.Legal BackgroundThe Fair Labor Standards Act (FLSA) is the federal law that applies to the payment of workers – most notably minimum wage ($7.25 per hour) and overtime (time and a half over 40 hours in a week).  Importantly, however, the FLSA does not require an employer to pay its employees their tips in every situation.In 1974, Congress established an exception to the minimum wage for workers that receive at least $30.00 per month in tips.  The exception (or special minimum wage) is that an employer is permitted to pay the tip-employee an hourly rate of $2.13, so long as the employee receives all of his/her tips.  (29 U.S.C. § 203(m))  This is often referred to as the “tip-credit provision.”  However, the “tip-credit provision” makes no reference to employees that are compensated at the full minimum wage.In 2011, the Department of Labor (DOL) issued a regulation that declared that tips are the property of the employee regardless of whether the employer pays the employee the special or full minimum wage.  (29 C.F.R. § 531.52)  However, this regulation has been invalidated by a number of Federal Circuit courts, most recently by the Tenth Circuit, on the basis that the DOL did not have the authority to issue the regulation. See Marlow v. The New Food Guy, Inc., __ F.3d __, 2017 WL 2818874 (10th Cir. June 30, 2017).  More specifically, a federal agency may issue a regulation only if the statute is silent or vague with respect to an issue and the vast majority of Federal courts believe that “tip-credit provision” is not vague or silent regarding the ownership of tips.What It MeansMost Federal courts that have reviewed the DOL regulation have determined that the regulation is not enforceable and I don’t anticipate that the Trump administration will continue to attempt to enforce the regulation.With that said, if an employer pays an employee the full minimum wage, the employer is legally entitled to keep all of the tips.  From a practical standpoint, however, such a policy will negatively effect employee morale.  What is legally permissible is not always best.For those employers that use the special minimum wage, all tips must be passed on to the employee.If you have any questions, please contact James B. Shrimp at 610-275-0700 or via email at jshrimp@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation. 

What Does “Earning Capacity” Mean and Why Does it Matter for my Support Case?

When a marriage is ending, one of the first issues that must be addressed is the amount of support payments that must be paid.   The first task in calculating support, whether it be spousal support, alimony pendente lite or child support, is calculating the parties’ income available for support. The Pennsylvania  support statute provides a very broad definition of income which includes “income from any source.” For many people, their income consists primarily of the wages they receive from their employer and perhaps some additional investment income. For others, including those who own business interests, the calculation of income can be multifaceted.An issue that is raised in many support cases is what happens if one of the parties is under-employed or voluntarily unemployed. This situation is addressed by Pennsylvania Rule of Civil Procedure  1920.16-2(d)(4) which states as follows:

“Earning Capacity. If the trier of fact determines that a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that party an income equal to the party’s earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record. Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full-time position. Determination of what constitutes a reasonable work regimen depends upon all relevant circumstances including the choice of jobs available within a particular occupation, working hours, working conditions and whether a party has exerted substantial good faith efforts to find employment.”

In short, this section of our Civil Court Rules tells us that, for support calculation purposes, if someone is voluntarily not working or working only part-time, that person can be assigned an income above what they actually take home when support is calculated. The same theory applies if someone is “underemployed” in that they are working full time, but could earn more at another position based on their historical earnings and education/expertise. In the court’s eyes, it is not acceptable to manipulate the support calculations to your benefit by minimizing your income. This concept applies to both the individual paying support and the individual receiving support.Earning capacity litigation can be complex and involve the retention of vocational experts to determine what a party’s earnings could be. Some courts invite the opinions of head hunters to weigh in on what positions are realistically available. The party being scrutinized will have to supply their historical income as well as education and professional training. The imputation of an earning capacity can be have a dramatic effect on your support calculations. If you believe that you and/or the other party in your support case could be subject to an assigned earning capacity, I strongly recommend that you speak with an attorney who regularly handles support cases in your home county to discuss whether your situation warrants an earning capacity claim.If you have any questions, please contact Elizabeth C. Early at 610-275-0700 or via email at eearly@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.