Harmon v. CB Squared Services Inc.
624 F. Supp. 2d 459, 2009 U.S. Dist. LEXIS 46040, 29 I.E.R. Cas. (BNA) 310 (2009)
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Rule of Law:
An employer violates the Employee Polygraph Protection Act (EPPA) by merely requesting or suggesting that an employee take a polygraph test, regardless of the employee's consent. To invoke the EPPA's 'ongoing investigation' exception, an employer must strictly adhere to all of the statute's detailed procedural notice requirements.
Facts:
- Ollie Leon Harmon was a manager for CB Squared Services Incorporated ('CB Squared'), a Jiffy Lube franchisee.
- In October 2008, Harmon informed CB Squared executives that a competing franchisee, 'STC', had offered him a job.
- After STC denied the claim, Mike Day, the President of CB Squared, asked Harmon if he would voluntarily submit to a polygraph test to corroborate his story.
- Harmon agreed and traveled to Richmond on October 15, 2008, where the polygraph examination was administered.
- Prior to the exam, CB Squared did not provide Harmon with the specific written notices required by the EPPA.
- On October 16, 2008, Day and other executives met with Harmon and informed him that the polygraph results revealed 'deception'.
- During the same meeting, after discussing the results, CB Squared demoted Harmon and reassigned him to a new store location.
- Dissatisfied with the demotion, Harmon submitted his two-week notice of resignation, which CB Squared accepted effective immediately.
Procedural Posture:
- Ollie Leon Harmon sued CB Squared Services Inc. in the U.S. District Court for the Eastern District of Virginia, alleging violations of the Employee Polygraph Protection Act (EPPA).
- The trial court previously denied CB Squared's Rule 12(b)(6) Motion to Dismiss.
- Harmon filed a Motion for Partial Summary Judgment on Counts I (improper request) and II (improper use of results).
- CB Squared filed a cross-Motion for Summary Judgment on all counts, including Count III (wrongful termination).
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Issue:
Does an employer violate the Employee Polygraph Protection Act (EPPA) by requesting an employee take a polygraph test and using its results, when the employer claims an 'ongoing investigation' exemption but fails to follow its strict procedural requirements?
Opinions:
Majority - Hudson, J.
Yes, an employer violates the EPPA under these circumstances. The court found that the EPPA's plain language prohibits an employer from even 'requesting' or 'suggesting' that an employee take a lie detector test. Therefore, the fact that CB Squared's president, Mike Day, admitted to asking Harmon to take the test constituted a violation of § 2002(1) as a matter of law, and Harmon's 'voluntary' consent was immaterial. Similarly, by informing Harmon that his results showed 'deception' and discussing those results, CB Squared violated § 2002(2)'s prohibition on using, accepting, or referring to polygraph results. The court rejected CB Squared's attempt to use the 'ongoing investigation' exception because the company completely failed to comply with the exception's strict procedural prerequisites, such as providing a detailed, signed statement to Harmon at least 48 hours before the test. Because there were no genuine issues of material fact regarding these violations, summary judgment for Harmon on Counts I and II was appropriate.
Analysis:
This case solidifies the strict-liability nature of the Employee Polygraph Protection Act's core prohibitions. It clarifies that an employer's intent and an employee's consent are irrelevant; the mere act of suggesting a polygraph test triggers liability. The ruling serves as a strong warning to employers that the 'ongoing investigation' exception is not a loophole to be used casually, as courts will demand strict and complete compliance with all its detailed procedural requirements. By applying the federal constructive discharge doctrine, the opinion also confirms that employees who are forced to resign due to intolerable conditions created after an illegal polygraph test may still pursue a wrongful termination claim under the EPPA.
