Refusing a Polygraph

[RubberBand]

My question involves labor and employment law for the state of: South Carolina

I am a highschool math teacher and I take up a part time job most summers for the extra income. This summer, I ended up working at a convenience store. Today, I received a call at home about an incident at the store involving some missing money, and that I would be required to take a polygraph test this coming Thursday.

The money had gone missing from a combination safe inside the manager's office (which no employee is allowed); also, only the manager and assistant manager (to my knowledge) know how to open the safe. The assistant manager is and has been out of town for the past month or so attending to another store. The manager has a history of misplacing things (a month ago I found two thousand dollars just sitting on top of our main safe; I put said money in the main safe after calling her and informing her of it).

I was told the amount missing is less than 300 dollars. I was also on shift the day of the incident.

Anyway, my questions: Do I have the right to refuse this polygraph test without any repercussions? Will taking or not taking this polygraph have any effect on my teaching position? can/will the district be given information on it since they are part of the government?

[BOR]

Research the "Polygraph Protection Act" of 1988, this I am familiar with.

[RubberBand]

I have a copy of this act printed out already.

It states: "it shall be unlawful for any employer engaged in or affecting commerce or in the production of goods for commerce--- 3)to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take and such action against--- A)any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test."

There are other number and letters that I left out since they don't seem to apply; there are also some exceptions that follow, but I don't follow it as well as I would like. I'm a math teacher for a reason, english (read: legal jargon) isn't my strong point.

[BOR]

If I remember parts of the act, it excludes such as security personnel engaged in such as money transfer, bank guards, etc., and employees who deal in Drug manufacture, etc. I have not looked at it yet, it was many years ago..


If you are concerned about the "commerce" part, don't be, it includes you, just as the federal miniumum wage states it applies to any employer engaged in interstate commerce, which generally means everyone.

You work in a store, if the can of peas you sell came from out of state "interstate commerce" you are covered. Every business, in some way, engages in Interstate commerce.

I hope that makes some sense, but if it does not, trust me, you are covered.

I do seem to remember a clause which also states the employer can NOT even ask you to take a PG unless they strongly believe you are involved, and still, you can refuse.

BOR *Bill of Rights*

[RubberBand]

Thanks, BOR. I was pretty sure I was reading that part of the Act correctly; however, the exemptions I was concerned about.

Something along the lines of: if they can reasonably suspect me in theft, that I cannot refuse?

Can they reasonably suspect me of this even though I do not have the means to open the safe from which the money had gone missing?

[BOR]

Thanks, BOR. I was pretty sure I was reading that part of the Act correctly; however, the exemptions I was concerned about.

Something along the lines of: if they can reasonably suspect me in theft, that I cannot refuse?

Can they reasonably suspect me of this even though I do not have the means to open the safe from which the money had gone missing?

I will have to go over the act again, later tonight, but from what I remember even if they strongly suspect you and they ask, you can still refuse??

I will get back early in the AM after I read it, or someone else can jump in!!

If you did not have access to the safe anytime, even it was left open, I don't see how they can suspect you?? Sounds like they are fishing for a scapegoat!!

[RubberBand]

I will have to go over the act again, later tonight, but from what I remember even if they strongly suspect you and they ask, you can still refuse??

I will get back early in the AM after I read it, or someone else can jump in!!

If you did not have access to the safe anytime, even it was left open, I don't see how they can suspect you?? Sounds like they are fishing for a scapegoat!!

Thanks again, BOR. I'll check back later to see what you've found out.

Just a little more info: the safe sits on the floor beside the manager's desk. Employees are only allowed in the room to clock in and out, so I guess technically everyone had 'access' to the safe, just not the means to open it.

[Betty3]

South Carolina polygraph testing:

South Carolina employers may not give pre-employment polygraph tests except in very specific circumstances. This issue can be a concern for potential employees with the increased awareness of security in the workplace.

Both employees and employers should be aware that the Employee Polygraph Protection Act, a federal law, prohibits pre-employment lie detector screenings.

Some employers are allowed to give polygraphs during the hiring process, including state and local agencies hiring law enforcement officers. Government agencies are allowed to administer polygraph tests as a prerequisite to employment. This includes local and state governments as well as the federal government.

A few private companies are also permitted to give pre-employment polygraph tests. These include armored car companies and companies that manufacture, transport or distribute prescription drugs.

Under existing law current employees may not be given lie detector tests unless there is specific cause to justify the exam. Employees suspected of a criminal act, which resulted in loss to the employer, may be given a polygraph test. Employers must be cautious in choosing to administer such polygraphs. Penalties for abuse of polygraphs can be up to $10,000 per incident.

The polygraph test is only one of several lie detector instruments. All the various lie detector instruments are governed by the same restrictions. These devices seek to determine an individual’s honesty or dishonesty by measuring a variety of biological patterns, which may change when an individual is not telling the truth. Any test which uses an instrument to measure such readings to determine truthfulness would fall under the same regulation.

If there is a proven need to test an individual then written notice must be given to the employee. The employee may refuse to take the exam. An employer is prohibited from firing an employee because of his or her refusal to take a lie detector test.

[aaron]

Note that where the federal law applies and imposes more stringent requirements than the state law, the federal law governs.

[BOR]

http://www.dol.gov/esa/whd/regs/statutes/poly01.pdf

Sec. 7, in part:

(d) LIMITED EXEMPTION FORONGOING investigations.—Subject to
sections 8 and 10, 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 Fraud.
investigation involving economic l0SS or injury to the em- Espionage
ployer’s business, such as theft, embezzlement, misappropria-
tion, 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 has a reasonable suspicion that the employee
was involved in the incident or activity under investigation;

"Access" to a safe that is left open that should not have been left open is negligence on the employer's part the manager should be disciplined, not the employees.

I suppose you could interpret 3 as a "reasonable suspicion" if there were only a handful of employees who had access to the backroom.

Section 8, in part:

(2) UNDER OTHER Exemptions.-In the case of an exemption
described in subsection (e) or (f) of such section, the exemption PUBLIC LAW 100-347—JUNE 27, 1988 102 STAT. 651
shall not apply if the results of an analysis of a polygraph test
chart are used, or the refusal to take a polygraph test is used, as
the sole basis upon which an adverse employment action de-
scribed in paragraph (1) is taken against an employee or
prospective employee.

You still can REFUSE, as I strongly interpret the law, to take a PG when asked.

It sounds like the company is trying to blame others when in fact they should focus on whoever left the safe open. Letting go a subordinate is more cost effective and business efficient than letting go the Manager, as you are more expendable. That is how many employers operate.

"At will" employment gives an employer the right to demand anything they want, law notwithstanding, YOU have the burden of proof, if you sue, to prove they discharged you/disciplined you in violation of the law.

Of course, you can "quit anytime" as some would say, but the playing field is hardly level and hardly fair, since I have rarely heard of an employee abusing an employer as employers do employees, legal or not.