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The polygraph's part in prosecuting.

WITH THE PASSAGE OF THE Employee Polygraph Protection Act of 1988 (EPPA), most private employers stopped using the polygraph as a preemployment or investigative tool. Although the federal law allows employers to use the polygraph during specific internal investigations, most have discontinued its use for fear of litigation. However, the EPPA also allows employers to use the polygraph during post-termination decisions to prosecute an employee for his or her dishonest acts during employment.

Most employee theft investigations follow a standard format: A theft or mysterious disappearance is discovered and reported to management or an in-house investigative unit. An investigation is initiated. Information, testimony, and evidence are discovered identifying an employee as the responsible party. The employee is interviewed. During the interview, the employee admits to specific acts of theft or dishonesty. A statement is obtained, listing the extent of the employee's dishonesty. The employee is suspended pending a review of the investigation by management. After a review of the facts and testimony, a decision is made to terminate the employee. The employee is officially terminated.

But before the case is closed, another decision must be made: Will the employee be prosecuted for his or her specific acts of theft? Some employers have blanket policies of prosecution, but many elect to review each case individually to determine if the added penalty of prosecution is warranted or cost-effective.

Many employers do not want to prosecute a one-month employee for the theft of a small item because of the potential cost of witness time and case preparation, but most employers will prosecute an employee for the theft of cash and merchandise totaling thousands of dollars. Many factors must be considered when making this decision, including the length of employment, the character of the employee's employment, the employee's contribution to the company prior to the acts of dishonesty, and the employee's family and financial situation.

Management usually asks several questions when making a decision about prosecuting a dishonest employee. Has the employee been honest with the investigator in his or her admission of theft? Has the employee been truthful and complete in his or her statement, or does the employee appear to be deliberately concealing additional thefts? Simply put, management wants to know if the employee's admissions are true and complete or if they are just the tip of the iceberg.

It is during this decision-making process that the polygraph can be of use to the private employer. In my experience, a dishonest employee will admit to approximately 20 to 50 percent of dishonest acts. Omissions are an act of self-preservation. After all, why should he or she admit to something that the investigator has no knowledge of.? A typical dishonest employee will admit to exactly what the investigator has uncovered and little else, especially if the employee understands that he or she will be asked to make monetary restitution.

Private employers can break through this denial process by asking terminated employees to submit to a polygraph examination prior to the employer's decision to release the employee from prosecution. Faced with the certainty of the verification of his or her statements by polygraph, a dishonest employee is more likely to reveal dishonest acts.

However, care must be taken to avoid entanglement with the specific prohibitions of polygraph use outlined in the EPPA:

* The employer's intention to use the polygraph should not be mentioned to the employee during the investigation.

* Prior to the employer's mention of the polygraph, the employee must be terminated and have signed a written termination notice.

* At the time of termination, the employer should explain to the employee that the employer has not yet decided whether the employee will be prosecuted. The employee should be advised that the company intends to ask him or her to submit to a polygraph examination to verify the completeness of written statements prior to making a decision on prosecution. The employee must understand that his or her termination is final and irrevocable, regardless of the results of the examination (polygraph).

* The employee should be asked to sign a polygraph waiver (see the accompanying box), and an appointment should be scheduled at least 48 hours in advance. This provides the employee with a chance to cool off and consult with an attorney or adviser.

The polygraph waiver details several test conditions. First, the employee will be asked to provide a revised list of cash, merchandise, goods, or services that he or she has stolen from the employer. This revised list should be completed during the 48-hour cooling off period and will be reviewed with the employee prior to the polygraph examination.

Second, the employee will be asked to make full restitution for all items listed on the new statement. However, the employee is advised that they will not pursue criminal prosecution for any new item on the employee's revised list of stolen items.

Third, the employee has the right to refuse to take the examination. After all, the employee is asking the employer not to prosecute him or her for theft. The employee's dishonesty has already been established through the acts of theft, and the examination is the employer's way of ensuring that the employee is not taking advantage of the employer's trust once again. It is in the best interest of the employee to demonstrate to the employer that his or her statements are true.

Fourth, the employee's refusal to submit to the polygraph examination will be considered by the employer in making a decision about prosecution.

Fifth, if the results of the polygraph examination indicate that the revised list of stolen cash, merchandise, goods, or services is true and complete to the best of the employee's knowledge, criminal prosecution will not be pursued.

Finally, if the results of the polygraph examination indicate that the employee is deliberately withholding information on additional thefts and acts of dishonesty, the employer retains the option to prosecute the employee for the thefts admitted to in the original statement obtained before the employee's termination. The employee will not be asked to make restitution for any cash, merchandise, goods, or services listed on the revised statement that were not also included on the original statement. The employee is in the same position he or she was in before the polygraph examination. However, the employer has gained information that will assist it in making a decision on prosecution.

If the polygraph examination indicates that the employee is being truthful, he or she will not be prosecuted for any of his or her dishonest acts. The employee will be required to make restitution in full for all items he or she admits to stealing in both statements. The employee benefits by avoiding prosecution, and the employer benefits by obtaining a more accurate recovery from the employee's dishonest acts.

Polygraph Waiver

1. Terry J. Ball, make the following statement of my own free will. For the past 18 months I have been employed by the ABC Tool Company of 5525 South Emerson Street, Lynnwood, WA 98036.

During my term of employment, I have been responsible for the theft of approximately $2,500 worth of cash, merchandise, goods, and/or services from my employer. In a separate statement, executed by me, I have outlined these thefts. That statement was made voluntarily and is true and complete to the best of my recollection. As of this date, I have been notified that my employment has been terminated with my employer. It has been explained to me that this termination is final and irrevocable.

My employer has explained to me that in addition to the termination of my employment, it is considering prosecuting me for the thefts that I have admitted to in my statement. I have made an honest attempt to list all of the cash, merchandise, goods, and/or services I have admitted to stealing from my employer. I have agreed to take a polygraph examination to verify the completeness of my statements. The following conditions have been outlined to me by my employer.

1. I will be allowed 24 hours to make any additions to my statement. My employer has asked me to add any additional items to my list of stolen items that I am certain I have stolen from my employer.

2. I will be allowed to review my original statement and any additional information with the polygraph examiner prior to the examination.

3. I will be given a polygraph examination to determine if I am deliberately withholding any information from my employer concerning additional thefts from my employer.

4. If, in the opinion of the polygraph examiner, the list I have provided is true and complete, I WILL NOT BE PROSECUTED for any thefts listed in my original statement and any subsequent statements. I will be asked to make restitution in full for all the items I have listed in all the statements I have provided to my employer.

5. If in the opinion of the polygraph examiner I am deliberately withholding information about any additional thefts, my employer will retain its ability to prosecute me for the theft of all the items I have listed in my original statement ONLY. Any additional items, not listed in my original statement, will not be the subject of either criminal prosecution or any restitution agreement.

It has been explained to me that I have the right to refuse to take this polygraph examination. It has also been explained to me that regardless of my decision to take the polygraph and regardless of the results of the polygraph examination I will not be rehired by my employer.
signed______________________ date_______________
COPYRIGHT 1991 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991 Gale, Cengage Learning. All rights reserved.

Article Details
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Title Annotation:includes sample polygraph waiver
Author:Ball, Terry J.
Publication:Security Management
Date:Oct 1, 1991
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