A friend in California has just lost his job in a layoff together with 98 other employees in the same private sector company. The company’s administrators have told him that he was included in the recent layoff because of his refusal to take a lie detector test regarding some drugs that were found in his company locker. He also declined to take a drug test since he was afraid that a positive result would make the state child protection agency to take away custody of his children. This situation is an example of a scenario with legal ramifications on the basis of several regulations such as Polygraph Protection Act, Worker Adjustment and Retraining Notification Act, Privacy laws, Drug Testing laws, and OSHA.
Generally, the use of lie detector tests in the workplace is not geared towards determining whether an employee is telling the truth but to examine whether the worker’s breathing and heart rate change or if he/she sweats. Consequently, an individual who is taking the test can fail if he/she is worried or nervous even if he/she is telling the truth. Moreover, the test examiners can make mistakes or make the individual feel nervous and eventually fail the test. These tests can primarily be defined as devices used to make a diagnostic opinion regarding a person’s honesty such as polygraphs, voice stress analyzers, and deceptographs (“Lie Detector Tests,” 2008).
According to the 1988 Employee Polygraph Protection Act, employers cannot have employees to take lie detector in most situations, except in cases where there is reasonable suspicion that a certain employee hurt the firm’s business. In relation to employees’ privacy, federal and state privacy laws do not require employees to undertake lie detector tests in order to obtain or keep a job. However, employers may require employees to undertake such tests if their actions could have significant impact on their job performance. The privacy laws allow employers to administer such tests as part of their legitimate interest in evaluating employee performance in the workplace. Moreover, employees are allowed to establish drug testing policy and programs especially when there is an employment contract between the employer and employee. While the implementation of these policies and programs is examined on a case to case basis, their use in public service jobs is considered as illegitimate invasion of employees’ privacy (“Employees Rights in the Workplace,” 1999).
Based on these laws, the private sector company had legitimate basis and reasons to ask the employee to take the lie detector tests and drug tests. The presence of drugs in the employee’s locker provided the basis for these tests since drug use would hurt the business. The employee’s refusal to undertake these tests and fears that false positive results would result in state child protection agency taking away custody of his children were proof the employer’s reasonable suspicion. As a result, the employer had no other option except to layoff the employee for improper practices in the workplace.
However, the employee can sue the employer for violation of his/her rights based on the Employee Polygraph Protection Act and the Worker Adjustment and Retraining Notification Act. The lawsuit would be based on the employer’s failure to provide prior notice about the test and explain measures taken to avoid any false results or mistakes are required by EPPA. Moreover, the presence of drugs in the employee’s locker does not qualify as hurting a business or something that could cost the business money. In addition, there is no evidence of an employment contract that required employees to undertake drug tests, which implies that this is a violation of his rights to privacy. Since this was part of a mass layoff, the employer has violated the Worker Adjustment and Retraining Notification Act. The legal ramifications of this incident is that the private sector company may be liable to compensate the employees for any financial losses they suffered such as rehiring them back or promoting them for violating workplace laws.
“Employees’ Rights in the Workplace.” (1999). The Maryland State Bar Association, Inc.
Retrieved May 9, 2014, from http://www.msba.org/departments/commpubl/publications/brochures/workplace.asp
“Lie Detector Tests.” (2008). Can My Boss Do That? Retrieved May 9, 2014, from http://www.canmybossdothat.com/category.php?id=269
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