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Beware firing based on police polygraph tests

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in Firing,Human Resources

Employee theft is a big problem, and it could get bigger during hard economic times. Sometimes employers learn about “inside jobs” from police. When that’s the case, watch out for an interesting trap that can lead to litigation.

If police run a polygraph test on an employee as part of an investigation and share the information, make sure you don’t use it when deciding whether to fire the employee.

Instead, take whatever disciplinary action you would have taken without knowing anything about the polygraph test.

In the following case, the employer was saved because it showed the court that it would have—and had in fact—fired another employee for similar conduct without having any evidence of a failed polygraph.

Recent case: Daniel Worden worked at a Sun Trust Bank branch. One day, he telephoned the bank, claiming he had been kidnapped and asking that the safe be opened. He said he was being threatened. When the bank refused, he called police and reported the kidnappers had abandoned him in the woods.

Suspecting Worden staged the whole thing, police asked for a polygraph. Worden failed, and the police informed the bank.

The bank then fired Worden, based on what it said was lack of trust and police investigators’ suspicion that he was behind the scheme. Sun Trust noted it had fired another employee under almost identical circumstances, although that employee had not taken a polygraph.

Worden sued, alleging the bank violated the Employee Polygraph Protection Act. But the 4th Circuit said the bank had shown it would have discharged Worden even if it knew nothing about the test. (Worden v. Sun Trust Banks, No. 07-1354, 4th Cir., 2008)

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