Polygraph tester liability under federal law

Workforce, Sept, 2002 by D. Diane Hatch, James E. Hall

After Selestino Calbillo and other employees were questioned by Cavender Oldsmobile's management about some missing Freon, Cavender hired Donald Trease and his two companies to investigate and administer polygraphs to Cavender employees. When Cavender demanded that Calbillo take a polygraph examination or be fired, he took and failed the test and was fired.

Calbillo sued Cavender and Trease's companies in federal district court, alleging violations of the federal Employee Polygraph Protection Act and state law claims of negligence and fraud. The EPPA makes it unlawful for an employer to require or request that an employee take a polygraph test or to fire a worker who refuses to do so. However, an employer may ask an employee to submit to a polygraph if it is connected to an ongoing investigation involving economic loss or injury to the employer's business.

After Calbillo settled with Cavender, the district court dismissed the claims against the other two companies. The U.S. Court of Appeals for the Fifth Circuit affirmed, and agreed that a private investigator that administers a polygraph test is not an "employer" subject to the EPPA. Because neither of Trease's companies exerted any control over the dealership's compliance with the EPPA, or the employment relationship between Cavender and Calbillo, they could not be liable. Calbillo v. Cavender Oldsmobile, Inc., 5th Cir., No. 00-51129 (4/25/02).

Impact: Employers remain liable for EPPA violations, and so are advised to carefully select and monitor the entities that administer polygraph tests to employees.

D. Diane Hatch, Ph.D., is a human resources consultant in San Francisco. James E. Hall is an attorney with Barlow, Kobata & Denis. (Offices in Los Angeles and Chicago.)