STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JESSICA L SOCHA, Employee

C C OF MADISON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09002068MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 10 of 2009, if otherwise qualified.

Dated and mailed October 16, 2009
sochaje . usd : 178 : 1   VL 1005.01   VL 1080.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee was properly required to submit to a polygraph test and that she did not have good cause for quitting due to this requirement. It argues that it was exempt from the provisions of the Employee Polygraph Protection Act of 1988 (EPPA) because it complied with all the procedures necessary for an exemption.

The commission has considered the employer's argument when reviewing the record but disagrees that the employer followed the necessary steps to fall within an exception to the general prohibition to employer required polygraph testing.

In the case cited by the employer, the Court of Appeals found that the employer was not bound by the provisions of the EPPA because it fell under the governmental unit exemption. The employer does not argue that the same exemption applies to it. Instead it argues that it met the criteria for ongoing investigations which resulted in economic loss to the employer.

The Code of Federal Regulations has specific criteria which must be met if an employer wishes to take an adverse job action against an employee for refusing to take a polygraph test. 29 CFR 801.12 contains the criteria which the employer must establish to fall within the exemption. As the ALJ noted the employer failed to establish that it met those criteria. In particular, the employer did not establish that it "provide[d] the examinee with a statement, in a language understood by the examinee, prior to the test which fully explains with particularity the specific incident or activity being investigated and the basis for testing particular employees..." No testimony was offered that the employee was offered any written statement signed by the employer, nor was such statement entered into evidence.

The commission concludes that the employee had good cause to quit her job rather than take the polygraph test. The appeal tribunal decision is affirmed.

cc: Cost Cutters of Madison (Madison, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2009/10/23