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Lie Detectors in Discipline Cases

It can be tempting for and innocent workers to agree to a lie detector test if accused of wrongdoing on the job, just as it can be tempting for an employer, convinced that a worker did something wrong, to insist on a test to lend muscle to a decision to discipline. It's the wise steward who counsels against workers cooperating with these polygraph tests. The fact is, most federal courts and most arbitrators do not have any faith in them as a means of scientifically establishing guilt or innocence.

As you'll see in the following arbitration decisions, most arbitrators give polygraph tests little weight.

Employees are under no obligation to submit to a polygraph test to prove their guilt or innocence

Threats

A nursing technician was fired for writing threatening letters to his head nurse. The company said the polygraph test indicated he was guilty. The arbitrator put him back on the job with back wages and all benefits. He said that polygraph results alone are not sufficient to prove guilt; he wanted corroborating information and the employer only offered circumstantial evidence. He noted that most arbitrators put little weight in lie detector results.

Another workers was fired for making a bomb threat. The union challenged the employer's introduction of lie detector results to resolve a question of credibility. The arbitrator refused to admit the test results, but found sufficient other evidence to sustain the discharge, so the worker stayed fired.

Refusal to take a test

An airline flight attendant was fired after marijuana was found in her luggage and she refused to take a lie detector test.

She denied she knew about the presence of the substance. The arbitrator reinstated her with back pay and benefits, saying that the grievant was not required to prove her innocence by taking a lie detector test, and there was reasonable doubt whether she knew that the drug was in her possession.

Two nurse's aides were dismissed for supposedly fracturing the knee of a 91-year-old patient who said she was hurt while being taken to a shower. The aides refused to take a polygraph test. The arbitrator reduced the penalty to a disciplinary layoff without back pay because, he said, an employee should not be penalized for refusing to take a lie detector test. Additionally, the hospital never met its burden of proving the grievants gave the patient a shower on the date she was injured. He also noted that the employer did not make a case that the injury was due to an intentional act or even negligence on the part of the two nurse's aides. He also said most arbitrators give little or no weight to use of lie detectors.

Theft

A home for elderly had a problem with theft in the workplace. Management established a rule requiring polygraph testing of all employees, and suspended several employees and fired another for refusing to take the test. The arbitrator reversed all disciplines and the dismissal, saying that the testing would be involuntary and, possibly, contrary to the ethical code of conduct for polygraphists. He further noted that federal authority establishes that tests are not admissible in federal court or arbitration proceedings with the permission of both parties.

A car rental agency fired an employee for the theft for $4,802 from a safe. She was examined by two different polygraph operators within a one-week period. One said she was truthful and the other said she was deceptive. The arbitrator put her back on her job with full benefits because the only evidence submitted was based on a negative lie detector test. He said the company did not establish guilt beyond a reasonable doubt.

Drugs on the job

Four employees were fired for possessing marijuana on the job. The company introduced an undercover detective's testimony to prove its case, and had the detective take a lie detector test to prove he was truthful. The arbitrator upheld the discharges in spite of the union raising the question of entrapment. IN upholding the discharges, he said that the undercover detective's testimony regarding each grievant's use of drugs was first hand information and "rang true," but he gave no weight to the polygraph test taken by the undercover agent.

Some principles to bear in mind when lie detectors are used in discipline cases:

Always object to their use and don't let employees or the union agree to them.
Employees are under no obligation to submit to a polygraph test to prove their guilt or innocence.
Remember that polygraph tests accurately identify innocence or guilt in no more than 50-60% of cases.
If a polygraph test is used, over the union's objections, always check the qualifications of the polygraph operators.
The employer should always introduce additional corroborating evidence to back up a claim of guilt.
The employer is obliged to prove the accused worker is guilty beyond a reasonable doubt.

--George Haggland. The writer is professor emeritus of labor education at the School for Workers, University of Wisconsin-Madison

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