Legislators’ Mounting Objections to the Use of Polygraphs Have Made Industry Seek New Ways to Test Workers’ . . . : Honesty, Diligence and Trust

When Thomas Kirtley applied for a sales job at a Color Tile home improvement store in Milpitas in 1982, he says he first was told to take a lie detector test, then asked to sign a form saying he was doing it voluntarily. Kirtley went for a lawyer instead. He eventually filed a lawsuit charging the Fort Worth, Tex., company with widespread violations of California’s law forbidding employers from requiring polygraph tests.

The outcome was a pretrial settlement reached in January described as the nation’s first successful class-action case against a corporation’s polygraph program. Color Tile, while not admitting guilt, agreed to pay damages of $750 to $28,000 to each of as many as 3,000 employees and job applicants--including Kirtley, who will receive $15,000.

If polygraph opponents have their way, a tougher version of the legal protection provided to Californians will be extended to workers nationwide. The effort gained momentum March 3 when the Senate joined the House in passing legislation that would severely restrict the use of polygraph exams by private employers. Conferees from both houses are expected to meet soon to iron out differences in the legislation.

Both bills are prompting companies in Southern California and across the nation to consider new ways to avoid hiring employees who steal and to catch the thieves already on their payrolls. They are looking at more rigorous job interviews, pencil and paper honesty tests and tighter surveillance.

In general, the Senate bill would ban all pre-employment polygraph tests but would permit exams of employees suspected of theft and who have had access to the missing property. The House bill would ban that sort of testing as well, but both measures contain a much-criticized hodgepodge of exceptions for the nuclear power, pharmaceutical, security guard and armored car industries.

By contrast, California law permits both pre-employment and criminal investigation testing but only on a voluntary basis.

While critics deride polygraph testing as error-prone and intrusive, some businesses contend that polygraph tests are a valuable tool in combatting employee theft, fraud and drug abuse.

Banks, jewelers, vending machine operators and retailers selling very valuable and portable products are the biggest users of polygraphs in Southern California, said Daniel J. Boyd, general manager of investigations at Boyd & Associates in North Hollywood. The firm’s three licensed polygraph examiners did about 1,200 tests last year, three-quarters as pre-employment interviews and most of the rest for specific crimes.

Boyd’s most spectacular case came last year, when thousands of dollars in valuable jewelry disappeared during a visit by a maintenance crew to a Los Angeles home. One of the workers initially professed his innocence but broke down and, Boyd says, confessed after being shown the results of a polygraph test. “He finally wrote out a confession saying he’d taken (all of the) jewelry and sold it later for $40,” recalled Boyd.

Critics, however, compare the machines to cheap carnival tricks that are unreliable but are used to intimidate criminals into confessing. “We think you can be every bit as accurate without resorting to, as we call it, the psychological rubber hose treatment,” said Michael Tiner, director of government affairs for United Food and Commercial Workers, a 1.4-million member union.

Some view questions about drug abuse and other personal issues often raised during polygraph interviews as invasions of privacy.

Estimates of the number of private polygraph tests done each year vary widely, ranging from 500,000 to 5 million. According to the nation’s largest producer of polygraph machines, Lafayette Instrument Co., no more than 500 of the machines are sold each year in the United States, with government and law enforcement agencies buying at least two-thirds of them.

Many businesses use polygraphs sparingly. Thrifty, a Los Angeles-based drug store chain employing 17,000, tests only employees who are under suspicion and wish to clear themselves, said Christian K. Bement, senior vice president. The tests are performed by the Los Angeles Police Department, and only on workers who volunteer, typically after a theft involving $20,000 or more, he said. “We will not go up to the group of employees and say, ‘We’d like you guys to take it.’ . . . You probably can count on both hands the number of times we use polygraph in Thrifty’s in a whole year.”

But if an employee under suspicion refuses to take a polygraph while all of his co-workers do and clear themselves, “We will take a little closer look at that employee in the future,” Bement said.

Critics say such situations reveal a weakness in California’s polygraph law. Although refusing to take a polygraph test cannot be grounds for firing an employee or denying a job to an applicant, it can draw suspicion.

The Senate bill would not affect Thrifty’s policy, but the House bill would. If the use of polygraphs in theft investigations is banned, the drug store chain would rely more on surveillance of suspected employees, Bement said. The company also administers so-called pen and paper honesty tests, consisting of booklets full of pointed questions and moral dilemmas, to applicants for management positions.

Unions Critical

Typical questions on one such test, the widely used Reid Report, range from “Do you believe you are too honest to steal?” to “If you knew a member of your family was stealing from a place where he works, do you think you would report it to the owner of the company?”

Many union leaders object to these tests and other alternatives to polygraph testing. “They’re not worth the paper that they’re written on,” Tiner said. “They’re not any more scientifically accurate than polygraph tests, and possibly less so.”

Companies may also start asking their interviewers to determine more about the integrity of the people they hire--a task for which most personnel departments may not be ready, said Joseph P. Buckley, a spokesman for the American Polygraph Assn. “They’re going to be asking those questions that historically haven’t been asked.”

One segment of the American economy likely would be unaffected by restrictions on polygraph testing: very small businesses. Although jewelry chains are among the heaviest users of polygraphs, the mom-and-pop retailers so common to the industry seldom do, said Michael D. Roman, executive director of Jewelers of America, a trade group. “You certainly wouldn’t use a polygraph on your wife,” he said.