Monthly Law Journal Article: Pre-employment Polygraph Examinations of Public Safety Applicants - Part 1, 2011 (7) AELE Mo. L. J. 201
     Monthly Law Journal Article: Pre-employment Polygraph Examinations of Public Safety Applicants - Part 2, 2011 (8) AELE Mo. L. J. 201
     Monthly Law Journal Article: Polygraph Examinations of Current Public Safety Employees, 2012 (1) AELE Mo. L. J. 201.

     A - CASES UPHOLDING MANDATORY USE
     B - CASES REJECTING MANDATORY USE
     C - ADMISSIBILITY OF POLYGRAPH EVIDENCE
     D - DUTY TO BARGAIN WITH UNION
     E - OTHER LEGAL ISSUES
     F - OTHER REFERENCES

     A - POLYGRAPH: CASES UPHOLDING MANDATORY USE
     Federal appeals panel sustains the demotion of a police lieutenant who refused to submit to a polygraph examination as part of an internal investigation. The panel rejected her First Amendment objections to the test. "It is clear in this case that the plaintiff’s ‘speech’ was of no public concern whatever and, therefore, is not protected by the First Amendment."
Luty v. City of Saginaw, #07-2035, 2009 U.S. App. Lexis 2674 (Unpub. 6th Cir.).
     Appellate court dismisses the appeal of a police applicant that was rejected because his polygraph examination indicated deception concerning his involvement with illegal drugs and narcotics. Management did not act irrationally or arbitrarily in relying on the results of their own polygraph test as well as a secondary review conducted by the Vermont state police. Mullen v. County of Suffolk, #2006-03220, 2007 N.Y. App. Div. Lexis 9671 (3rd Dept.).
     Town did not violate state polygraph statute by requiring police officer, accused of sexually molesting two minors, to submit to test to determine whether he should be disciplined after he was granted immunity from prosecution. Furtado v. Town of Plymouth, #06-P-892, 69 Mass. App. Ct. 319, 867 N.E.2d 801, 2007 Mass. App. Lexis 663, 26 IER Cases (BNA) 401.
     Appellate court in Missouri refuses to overturn an officer's termination for excessive force and lying because the Police Board considered testimony that he had failed a polygraph examination. There was sufficient other evidence to believe the charges. Kendrick v. Bd. of Police Cmsnrs. of K.C. Mo., 945 S.W.2d 649, 1997 Mo.App. Lexis 948. [1998 FP 91-2]
     Wisconsin's Fair Employment Act has been amended to allow a state law enforcement agency to administer the test to prospective employees, effective 5/16/97. FEP Manual (BNA) 458:8661 {N/R}
     Appellate court upholds LAPD requirement that officers who volunteer for sensitive assignments must submit to a polygraph test. Los Ang. Police Prot. League v. City of Los. Ang., 42 Cal.Rptr.2d 23, 10 IER Cases (BNA) 1192, 1995 Cal.App. Lexis 563. [1995 FP 154]
     Maryland appellate court upholds involuntary transfer of all drug enforcement officers who cannot pass a periodic polygraph exam. Calhoun v. Cmsnr. Balt. City Police, 103 Md.App. 660, 654 A.2d 905 (1995). [1995 FP 140]
     Federal appeals court upholds compulsory polygraph examinations of police officers, demanded by their superiors as part of an administrative investigation of potentially criminal conduct. Wiley v. Mayor of Baltimore, 1995 U.S.App. Lexis 4148 (4th Cir.). [1995 FP 91]
     Colorado appellate court upholds the termination of police officer who refused to take a polygraph exam after his involvement in an off-duty vehicle collision. Harris v. City of Colo. Springs, 867 P.2d 217, 9 IER Cases (BNA) 142 (Colo. App. 1993). [1994 FP 59]
     Use of the device was job-related because it "allowed the city to make a more informed choice about its hiring decisions; there was uncontradicted testimony at trial the polygraph "intimidated many applicants to reveal further information about their background." Tye v. City of Cincinnati, 794 F.Supp. 824 (S.D. Ohio 1992). [1993 FP 27-8]
     Two hour badgering by polygraph operators after testee allegedly failed the test was outrageous. Negligent interpretation of the results is also actionable; punitive damages awarded. Ellis v. Buckley, 790 P.2d 875 (Colo.App. 1990). {N/R}
     Federal court in Texas upholds disciplinary action against a police officer who refused to take a polygraph test after his arrest for possession of marijuana. Soto v. City of Laredo, 764 F.Supp. 448 & 454 (S.D.Tex. 1991). [1992 FP 106-7]
     Applicant for word processor position with state patrol was lawfully required to pass a polygraph exam. Washington state supreme court rejects all constitutional challenges. O'Hartigan v. State Dept. Persnl., 821 P.2d 44 (Wash. 1991). [1992 FP 171]
     Ohio Supreme Court upholds the right of a police chief to order subordinates to take a polygraph examination when they are under suspicion of misconduct. It is unnecessary for the department to have a rule requiring such exams. City of Warrensville Heights v. Jennings, Ohio St 3d 206, 569 N.E.2d 489 (Ohio 1991).
     U.S. Labor Department has proposed to fine and employer a record $315,000 for violations of the 1988 Employee Polygraph Protection Act. U.S. Dept. of Labor Wage & Hour Div. v. WH of KC, Inc.,
     Employee could not sue polygraph examiners who "negligently" interpreted his lie detector test results, which were furnished to his employer. Hall v. United Parcel Service, 544 N.Y.S.2d 250 (A.D. 1989).
     N.C. Appeals Court upholds pre-employment polygraph tests for police that probes an applicant's sexual practices. Truesdale v. Univ. of No. Car., 371 S.E.2d 503 (N.C. App. 1988).
     Federal appeals court rules that use of polygraph test in pre-employment screening did not violate the equal protection clause or violate an applicant's substantive due process rights. Anderson v. City of Philadelphia, 845 F.2d 1216 (3rd Cir. 1988).
     City jail officer who "transferred" to county payroll had to take a polygraph exam required of new employees. Stone v. Chelan Co. Sheriff's Dept., 110 Wash.2d 806, 756 P.2d 736 (Wash. 1988).
     Federal EEOC concludes that polygraph tests are non-biased; finds no race, sex, age or national origin bias. EEOC Notice N-915 (2/2/87).
     Federal Appeals Court upholds exam and control questions asked firefighters in drug investigation. Hester v. Milledgeville, 777 F.2d 1492 (11th Cir. 1985).
     Chief could not demand officer answer whether he was a homosexual absent indications of overt behavior. Warren v. City of Asheville, 328 S.E.2d 859 (N.C. App. 1985).
     Police dept. can require applicants to take polygraph as part of the screening process. Porto v. Town of Harrison, 474 N.Y.S.2d (A.D. 1984).
     Polygraph examiner cannot add additional, unrelated, unannounced questions into interview; termination for refusal to answer reversed. Guntharp v. Cobb County Georgia, 307 S.E.2d 925 (Ga. App. 1983).
     President Reagan adopts polygraph directive for federal employees with access to classified information. National Security Decision, Directive #84 (1983).
     Federal appeals court upholds polygraph as precondition for promotional opportunity. Brown v. State of Tennessee, 693 F.2d 600 (6th Cir. 1982).
     Federal appeals court upholds termination of public employees who refused to take a polygraph test. Gulden v. McCorkle, 680 F.2d 1070 (5th Cir. 1982). [83 FP#101 12]
     Alleged misuse of city time adequate basis to order polygraph. Rivera v. City of Douglas, 644 P.2d 271 (Ariz. App. 1982).
     Accused public employee must reply as to whether he has taken a polygraph examination; refusal to answer is insubordination. Nieukirk v. Board of Fire & Police Cmsnrs. of Peoria, 423 N.E.2d 1259 (Ill.App. 1981).
     Missouri appellate court sustains termination of officer who refused polygraph; results inadmissible however. Sorbello v. City of Maplewood, 610 S.W.2d 375 (Mo.App. 1980).
     No discipline permitted against person who agrees to take lie test but who refuses to sign examiner's waiver form. Jackson v. Wilson, 262 S.E.2d 547 (Ga. App. 1979).
     Police officer could seek injunctive relief against internal affairs investigation and disciplinary interrogation when he sufficiently pleaded political harassment and bad faith. Buege v. Lee, 56 Ill.App.3d 793, 373 N.E.2d 427 (1978). Note: Also see similar case to Buege v. Lee: Phillips v. Hall, 113 Ill.App.3d 409, 447 N.E.2d 419 (1983). {N/R}
     Financial disclosure, polygraph testing and psychological evaluations upheld in Florida sheriff's office. Fraternal Order of Police v. Freemen, 16th Jud. Cir. Ct. #78-932-CA-17 (1978). (#56 Fire & Police Persnl. Rptr. p. 7).
     Refusal to submit constitutes a terminable offense. Creadeur v. Dept. of Law Enforcement, 364 So.2d 155 (La. App. 1978).
     A police officer's refusal to submit to polygraph questioning hindered the inquiry and "was an act of misconduct." The order "was reasonable and within the limits of due process." Roux v. New Orleans Police Dept., 223 So.2d 905, 1969 La. App. Lexis 6054; Louisiana cert. den., 254 La. 815, 227 So. 2d 148, 1969 La. Lexis 3486 (1969); U.S. cert den. 397 U.S. 1008, 90 S.Ct. 1236, 1970 U.S. Lexis 2377 (1970). Cited by Lemoine v. Dept. of Police, 301 So.2d 396, 1974 La. App. Lexis 3516 and Frey v. Dept. of Police, 288 So.2d 410, 1973 La. App. Lexis 5635. Followed by Clayton v. New Orleans Police Dept., 236 So.2d 548, 1970 La. App. Lexis 5332. {N/R}
     • ALR Annotation: Refusal to submit to polygraph examination as ground for discharge or suspension of public employees or officers, 15 A.L.R.4th 1207, Sec. 2.

     B - POLYGRAPH: CASES REJECTING MANDATORY USE
     Illinois county could not suspend a corrections officer for refusing to undergo polygraph examination during an investigation, in light of a state statute and a state supreme court decision barring mandatory polygraphs on "peace officers." Kelley v. Sheriff's Merit Cmsn., #2-06-0624, 2007 Ill. App. Lexis 386, 226 IER Cases (BNA) 177.
     Illinois appellate court overturns discipline of a correctional officer for her refusal to submit to investigatory polygraph examination. Prior case law in Illinois (Kaske) prohibits employers from demanding a polygraph test. Kelley v. Sheriff's Merit Cmsn. of Kane Co., #2-06-0624, 2007 Ill. App. Lexis 386 (2nd Dist. 2007).
     Internal investigators are not required to administer polygraph exams when pursuing allegations of untruthfulness. The evidence showed that polygraphs were not uniformly used in internal investigations. Piercy v. Maketa, #05-1192, 2007 U.S. App. Lexis 7073 (10th Cir.).
     A Nebraska state corrections employee was not a "law enforcement" officer, and did not have to take a polygraph test. State law prohibits nonconsensual polygraph exams except for specific exceptions. White v. State, 248 Neb. 977, 540 N.W.2d 354, 1995 Neb. Lexis 234. [1996 FP 88]
     In (one of the few) polygraph prohibition states, an employer cannot request a voluntary exam, even if no disciplinary action is contemplated. The request itself is a civil rights violation. Carr v. Mulhearn, 601 A.2d 946 (R.I. 1992). [1992 FP 90]
     Appellate court overturns chief's order that promotional candidates submit to polygraph testing; civil service regulations did not grant this authority. Hatfield Twp. v. Stanley, 537 A.2d 63 (Pa. Cmwlth. 1988).
     Chief could not condition reinstatement of employee on successful polygraph examination. Marion v. Green, 505 A.2d 360 (Pa. Cmwlth. 1986).
     California Supreme court rejects polygraph requirements in continued employment (and prospective applicant) cases. Long Beach City Employees Assn. v. City of Long Beach, 719 P.2d 660 (Cal. 1986).
     At-will security guard, terminated for refusing a polygraph test that was prohibited by law, entitled to sue for damages. Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 416 N.W.2d 510 (1987).
     Federal Court enjoins Philadelphia from using polygraph results as sole basis of denying employment to police applicants. Anderson v. City of Philadelphia, 668 F.Supp. 441 (E.D. Pa. 1987).
     Montana strikes down law allowing law enforcement agencies to require officers to submit to polygraph. Oberg v. City of Billings, 674 P.2d 494 (Mont. 1983).
     Florida supreme court invalidates order by chief that a subordinate submit to a polygraph exam. Farmer v. City of Ft. Lauderdale, 427 So.2d 187 (Fla. 1983). Also see a 17,199 word article on Farmer v. Ft. Lauderdale at 11 Fla. St. Univ. Law Rev. 697 (Fall 1983).
     Pre-employment polygraph is not affected by the Florida Supreme Court's decision in Farmer v. Ft. Lauderdale; see Drayton v. City of St. Petersburg, 477 F.Supp. 846 (M.D. Fla.), a race discrimination suit which upheld the test in a suit by black applicants.
     Illinois Supreme Court bans polygraph use in public safety agencies; since evidence is inadmissible, employees may lawfully refuse to submit to test. Kaske v. City of Rockford, 450 N.E.2d 314 (1983). Also see Manias v. Peoria Co. Sheriff's Dept. 440 N.E.2d 1269 (Ill.App. 1982).
     State laws may ban use of polygraph test for employment. Talent v. City of Abilene, 508 S.W 2d 592 (Tex. Civ. App. 1974).

     C - POLYGRAPH: ADMISSIBILITY OF POLYGRAPH EVIDENCE

     Arbitrator rejects polygraph evidence in a termination case. "Polygraphs are not admissible in court because of their inherent unreliability. ... There is no logical reason to rely on the accuracy of the polygraph for one issue but not for the other." City of Austin and Combined Law Enforcement Assn. of Texas, 123 LA (BNA) 1042 (Guttshall, 2007).
     A divided Louisiana Supreme Court allows polygraph evidence in police disciplinary hearings. U. S. Supreme Court declines review. Evans v. DeRidder Mun. Fire and Police Civ. Serv. Bd., #01-C-2466, 815 So.2d 61, 2002 La. Lexis 962; cert. den., 2003 U.S. Lexis 636 (2003). [2003 FP Mar]
     Admission of test results at hearing was harmless error. Ost v. Sup. of Woodstock, 673 N.Y.S.2d 768 (A.D. 1998). {N/R}
     Arbitrator rejects polygraph evidence that supported a correctional officer's claim he was assaulted by a coworker. Ohio and OCSEA/AFSCME L-11, 109 LA (BNA) 170 (Bowers, 1997). [1998 FP 25-6]
     Nebraska Supreme Court holds that polygraph examination results are not admissible in police personnel hearings as proof of deception. Mathes v. City of Omaha, 254 Neb. 269, 576 N.W.2d 181 (1998). Also see, State ex rel. NSBA v. Miller, 258 Neb. 181, 602 N.W.2d 486 (1999). {N/R}
     Federal Merit Board declines to set aside a finding that the credibility of a witness was enhanced because of the results of a favorable polygraph examination. Rackers v. DoJ, #CH-0752-97-0218-I-1, 79 M.S.P.R. 262, 1998 MSPB Lexis 870 (1998). {N/R}     
     Qualified polygraph examiner was not competent to testify as to the scientific validity of the polygraph technique. To support the validity requires the testimony of an expert psychophysiologist as to why measurable psychological reactions are reliable indicators of whether a person is being truthful. Jesionowski v. Beck, 955 F.Supp. 149 (D.Mass. 1997). {N/R}
     Indiana Supreme Court rejects appeal from an officer that his polygraph exam results should have been admitted at his disciplinary hearing. Rynerson v. City of Franklin, 669 N.E.2d 964 (Ind. 1996). [1997 FP 90]
     Fifth Circuit, U.S. Court of Appeals, reverses a ruling that polygraph evidence is per se inadmissible. Citing advances in the reliability of polygraph techniques, they would allow polygraph evidence in certain circumstances. U.S. v. Posado, 57 F.3d 428 (5th Cir. 1995). {N/R}
     Federal trial court allows polygraph evidence offered by a criminal defendant who claimed he did not knowingly omit items from his tax return. U.S. v. Galbreth, CR# 94-197MV, 59 CrL (BNA) 1069 (D.N.M. 10/4/95). {N/R}
     Alabama supreme court allows polygraph results into evidence in police termination cases. Bostick v. Gadsden, 642 So.2d 472 (Ala. 1994). [1995 FP 140]
     Numerous references to a polygraph test, by a witness who testified at a police disciplinary hearing, was reversible error, even though test results were not introduced in evidence. Quigley v. Philadelphia Civil Serv. Cmsn., 596 A.2d 144 (Pa. 1991). [1992 FP 139-140]
     In a grievance arbitration hearing, the results of a polygraph test, voluntarily taken by police officer who was accused of attempting to sell cocaine, was admissible. The test was administered by expert who followed standard procedures and the results should be considered as another piece of information in determining credibility of witnesses. City of Miami and FOP L-20, 92 LA (BNA) 175 (Abrams, 1989). {N/R}
     Ohio rules that polygraph results are inadmissible, even though police dept. regulations specifically allow such use. City of Zanesville v. Sheets, 38 Ohio App.3d 24, 525 N.E.2d 842 (1987).
     Trial board erred in admitting polygraph evidence in support of witness testimony that officer took bribe. Ross v. Civil Serv. Cmsn., 511 A.2d 941 (Pa. Cmwlth. 1986).
     Oregon appeals court reverses termination because lie test results were told the hearing panel. Higley v. Edwards, 678 P.2d 773 (Ore. App. 1984).
     Admissions during test determinative, not results. No disparate impact found. Ramirez v. City of Omaha, 678 F.Supp. 751 (8th Cir. 1982).
     West Virginia rejects use of polygraph evidence in civil service hearings; upholds verdict under harmless error rule. Pryor v. Hutchison, 280 S.E.2d 326 (W.Va. 1981).
     Missouri appellate court sustains termination of officer who refused polygraph; results inadmissible however. Sorbello v. City of Maplewood, 610 S.W.2d 375 (Mo.App. 1980).
     Civil service commission could refuse to rely on polygraph results where persons examined were drunk during incident. Arnold v. New Orleans Police Dept., 383 so. 2d 810 (La. App. 1980).
     New York appellate court upholds polygraph evidence in contested termination lawsuit; disciplinary rules apply to conduct during periods of suspension. May v. Shaw, 434 N.Y.S.2d 284 (A.D. 1981).
     Civil service commission under no duty to accept polygraph evidence. Manale v. Dept. of Police, 376 So.2d 607 (La. App. 1979).
     Polygraph rules held inadmissible in a disciplinary hearing. Bart v. State Dept. of Law Enforcement, 367 N.E.2d 773 (Ill.App. 1977).

     D - POLYGRAPH: DUTY TO BARGAIN WITH UNION
     Duty to bargain: a police union's proposal, prohibiting management from administering polygraph or other deception testing, or blood, tissue and breathalyzer tests of police officers, was not mandatorily negotiable. Twp. of So. Brunswick and P.B.A. L-166, NJ-PERC #86-115 (1986), 12 NJPER (LRP) ¶17,138 [Lexis library]. {N/R}
     New York PERB no longer requires departments to bargain over breathalyzer and polygraph tests. Troy Uniformed Firefighters Assn. and City of Troy, PERB Case U-2451, 77-78 PBC (CCH) ¶ 40,384 (1977).

     E - POLYGRAPH: OTHER LEGAL ISSUES

     Polygraphs are not unreliable and can be validly used to monitor the post-release supervision of an offender. U.S. v. Johnson, 446 F.2d 272 (2nd Cir. 2006).
     Polygraph Exams Fifth Circuit affirms a holding that denied qualified immunity to a police chief that fired a detective who refused to waive her Miranda rights as part of a polygraph exam. Termination for invoking one's constitutional rights violated clearly established federal law. Hancock v. Baker, #07-40794, 2008 U.S. App. Lexis 1847 (5th Cir.).
     Management did not have just cause to discharge a police officer for failing to cooperate in a polygraph examination, because the officer took short, choppy breaths that made it difficult to score the results. City of Oklahoma City and FOP L-123, FMCS Case #060310/54391-7, 123 LA (BNA) 24 (Walker, 2006). [N/R]
     Employees who discovered a hidden video camera installed in their office may pursue claim for invasion of privacy without proving that the video stream was recorded or viewed. The employer's suspicion that someone was using computers to view pornography at night hours did not justify invasion of their privacy. Hernandez v. Hillsides, #B183713, 142 Cal.App.4th 1377, 48 Cal.Rptr.3d 780, 25 IER Cases (BNA) 174 (Cal. App. 2d Dist. 2006). {N/R}
     Federal court rules against applicants who were rejected by the FBI and Secret Service because they failed a polygraph examination; those agencies legitimately can inquire about an applicant's financial status, drug use, health, and criminal history. Croddy v. FBI, #00-651, 2006 U.S. Dist. Lexis 71823, 25 IER Cases (BNA) 272 (D.D.C. 2006). {N/R}
     Federal appeals court rejects various claims against the Illinois State Police and its polygraph examiner. The plaintiff had been fired after his polygraph exam allegedly revealed deception. Although the plaintiff found an "expert" who disputed the reliability of the scoring, there was no proof that the exam was intentional mis-scored, or that the scoring of the exam was substandard. Smock v. Nolan, #03-1546, 2004 U.S. App. Lexis 4874 (7th Cir. 2004). [2004 FP May]
     Federal court rules that a polygraphist, not employed by the plaintiff's employer, is not liable under the Employee Polygraph Act for the wrongful termination of the employee. Kluge v. O'Reilly, 9 IER Cases (BNA) 1411 (D.Kan. 1994). [1995 FP 10]
     Federal Court in S.C. holds that an officer, accused of misconduct, is not entitled to the presence of counsel while taking a mandatory polygraph test. Introini v. Richland County, 9 IER Cases (BNA) 1149 (D.S.C. 1993). [1994 FP 172-3]
     EEOC General Counsel concludes that polygraph exams are non-medical, although operators may not ask prohibited questions before or during a test which is part of a employer's pre-offer screening. EEOC: Enforcement Guidance on Pre-Employment Inquiries Under the A.D.A., FEP Manual (BNA) 405:7210-11 (#748, 1994). [1994 FP 138-9]
     Effect of California "Bill of Rights" law on the polygraph: see Estes v. City of Grover City, 82 Cal.App.3d 509, 1978 Cal.App. Lexis 1696, 147 Cal.Rptr. 131 (App. 1978) {cited with approval in Williams v. Los Angeles, 47 Cal. 3d 195, 763 P.2d 480, 1988 Cal. Lexis 253, 252 Cal. Rptr. 817 (1988)}.

     F - POLYGRAPH: OTHER REFERENCES
     Article: Police officer may not be dismissed for refusal to submit to a polygraph examination -- Farmer v. City of Ft. Lauderdale, 11 Fla. St. U.L. Rev. 697 (1983).
     ALR Annotation: Refusal to submit to polygraph examination as ground for discharge or suspension of public employees or officers, 15 A.L.R.4th 1207, Sec. 2.
     Book: "Detection of Deception", Electrodermal Activity in Psychological Research. W. Prokasky & D. Raskin (1973).
     Article: "The Case Against the Polygraph," 51 Amer. Bar Assn. Journal 855 (1965).