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  • Suspended Florida

    I have been suspended from work because I'm being accused of taking money. They suspended me about 2 weeks ago and they told me that when I get back from vacation ( because I was about to leave for vacation 2 days later ) I would have to take a pollygraph test, which I agreed to. They told me they would set up the appointment for the day after I got back. I've been back for a little over a week and still haven't done the test. I keep calling my boss and he says that he's to busy and he will get to it. Meanwhile my rent is due along with all my other bills and I can't pay them because I'm not working. Also I have a check sitting at work that they won't give to me because they said I have to pay my payday advance. What can I do about this?

  • #2
    Your employer has every right to suspend without pay when theft is suspected. It's unfortunate that you are having troubles making the bills. Only you know if continued employment with your current company is likely. If it's not, I'd suggest to look for other work.

    Comment


    • #3
      I know he had the right to suspend me but does he have the right to keep me hanging? He was supposed to have had the test date set up it should have been done over a week ago. But he's stringing me along and I'm sick of it. I have done nothing wrong, and I have to suffer for nothing.

      Comment


      • #4
        Unfortunately he MAY keep you hanging. How long have you been on unpaid suspension?

        Comment


        • #5
          Since September 9th. He was supposed to have set up the test for the 21st but he never did.

          Comment


          • #6
            At this juncture, do you believe that you'll be reinstated?

            Is there an HR department? Have you spoken to them?

            Comment


            • #7
              I think he's using the excuse that I'm suspended and he's to busy to make the appointment because he doesn't want me to work there. I'm not sure about an HR dept.

              Comment


              • #8
                It seems unlikely that you'll be reinstated. It sounds that you have the same feeling also. If this is a semi-decent sized company, I have a strong suspicion that an HR department does exist. Maybe your employee handbook has contact information. If an HR department exists, I'd contact them to assist. If not, maybe it's time to put this in the past and start looking for a new job.

                Comment


                • #9
                  The use of polygraph examinations by a private employer is so rare that I must question if the employer is meeting its legal obligations (see below). I have little familiarity with this area. If the polygraph would be illegal (because of a failure of the employer to meet one of the requirements listed below), but never administered (maybe because the employer had no intention of giving one), there may be no legal grounds to go after the employer. Seek legal counsel AND look for another job.

                  (a) Section 7(d) of the Act provides a limited exemption from the
                  general
                  prohibition on lie detector use in private employment settings for
                  employers conducting ongoing investigations of economic loss or injury
                  to the employer's business. An employer may request an employee, subject
                  to the conditions set forth in sections 8 and 10 of the Act and
                  Secs. 801.20, 801.22, 801.23, 801.24, 801.25, 801.26, and 801.35 of this
                  part, to submit to a polygraph test, but no other type of lie detector
                  test, only if--
                  (1) The test is administered in connection with an ongoing
                  investigation involving economic loss or injury to the employer's
                  business, such as theft, embezzlement, misappropriation or an act of
                  unlawful industrial espionage or sabotage;
                  (2) The employee had access to the property that is the subject of
                  the investigation;
                  (3) The employer has a reasonable suspicion that the employee was
                  involved in the incident or activity under investigation;
                  (4) The employer provides 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 and which
                  contains, at a minimum:
                  (i) An identification with particularity of the specific economic
                  loss or injury to the business of the employer;
                  (ii) A description of the employee's access to the property that is
                  the subject of the investigation;
                  (iii) A description in detail of the basis of the employer's
                  reasonable suspicion that the employee was involved in the incident or
                  activity under investigation; and
                  (iv) Signature of a person (other than a polygraph examiner)
                  authorized to legally bind the employer; and
                  (5) The employer retains a copy of the statement and proof of
                  service described in paragraph (a)(4) of this section for at least 3
                  years and makes it available for inspection by the Wage and Hour
                  Division on request. (See Sec. 801.30(a).)

                  (b) For the exemption to apply, the condition of an ``ongoing
                  investigation'' must be met. As used in section 7(d) of the Act, the
                  ongoing investigation must be of a specific incident or activity. Thus,
                  for example, an employer may not request that an employee or employees
                  submit to a polygraph test in an effort to determine whether or not any
                  thefts have occurred. Such random testing by an employer is precluded by
                  the Act. Further, because the exemption is limited to a specific
                  incident or activity, an employer is precluded from using the exemption
                  in situations where the so-called ``ongoing investigation'' is
                  continuous. For example, the fact that items in inventory are frequently
                  missing from a warehouse would not be a sufficient basis, standing
                  alone, for administering a polygraph test. Even if the employer can
                  establish that unusually high amounts of inventory are missing from the
                  warehouse in a given month, this, in and of itself, would not be a
                  sufficient basis to meet the specific incident requirement. On the other
                  hand, polygraph testing in response to inventory shortages would be
                  permitted where additional evidence is obtained through subsequent
                  investigation of specific items missing through intentional wrongdoing,
                  and a reasonable suspicion that the employee to be polygraphed was
                  involved in the incident under investigation. Administering a polygraph
                  test in circumstances where the missing inventory is merely unspecified,
                  statistical shortages, without identification of a specific incident or
                  activity that produced the inventory shortages and a ``reasonable
                  suspicion that the employee was involved,'' would amount to little more
                  than a fishing expedition and is prohibited by the Act.
                  (c)(1)(i) The terms economic loss or injury to the employer's
                  business include both direct and indirect economic loss or injury.
                  (ii) Direct loss or injury includes losses or injuries resulting
                  from theft, embezzlement, misappropriation, industrial espionage or
                  sabotage. These examples, cited in the Act, are intended to be
                  illustrative and not exhaustive. Another specific incident
                  which would constitute direct economic loss or injury is the
                  misappropriation of confidential or trade secret information.
                  (iii) Indirect loss or injury includes the use of an employer's
                  business to commit a crime, such as check-kiting or money laundering. In
                  such cases, the ongoing investigation must be limited to criminal
                  activity that has already occurred, and to use of the employer's
                  business operations (and not simply the use of the premises) for such
                  activity. For example, the use of an employer's vehicles, warehouses,
                  computers or equipment to smuggle or facilitate the importing of illegal
                  substances constitutes an indirect loss or injury to the employer's
                  business operations. Conversely, the mere fact that an illegal act
                  occurs on the employer's premises (such as a drug transaction that takes
                  place in the employer's parking lot or rest room) does not constitute an
                  indirect economic loss or injury to the employer.
                  (iv) Indirect loss or injury also includes theft or injury to
                  property of another for which the employer exercises fiduciary,
                  managerial or security responsibility, or where the firm has custody of
                  the property (but not property of other firms to which the employees
                  have access by virtue of the business relationship). For example, if a
                  maintenance employee of the manager of an apartment building steals
                  jewelry from a tenant's apartment, the theft results in an indirect
                  economic loss or injury to the employer because of the manager's
                  management responsibility with respect to the tenant's apartment. A
                  messenger on a delivery of confidential business reports for a client
                  firm who steals the reports causes an indirect economic loss or injury
                  to the messenger service because the messenger service is custodian of
                  the client firm's reports, and therefore is responsible for their
                  security. Similarly, the theft of property protected by a security
                  service employer is considered an economic loss or injury to that
                  employer.
                  (v) A theft or injury to a client firm does not constitute an
                  indirect loss or injury to an employer unless that employer has custody
                  of, or management, or security responsibility for, the property of the
                  client that was lost or stolen or injured. For example, a cleaning
                  contractor has no responsibility for the money at a client bank. If
                  money is stolen from the bank by one of the cleaning contractor's
                  employees, the cleaning contractor does not suffer an indirect loss or
                  injury.
                  (vi) Indirect loss or injury does not include loss or injury which
                  is merely threatened or potential, e.g., a threatened or potential loss
                  of an advantageous business relationship.
                  (2) Economic losses or injuries which are the result of
                  unintentional or lawful conduct would not serve as a basis for the
                  administration of a polygraph test. Thus, apparently unintentional
                  losses or injuries stemming from truck, car, workplace, or other similar
                  type accidents or routine inventory or cash register shortages would not
                  meet the economic loss or injury requirement. Any economic loss incident
                  to lawful union or employee activity also would not satisfy this
                  requirement. It makes no difference that an employer may be obligated to
                  directly or indirectly incur the cost of the incident, as through
                  payment of a ``deductible'' portion under an insurance policy or higher
                  insurance premiums.
                  (3) It is the business of the employer which must suffer the
                  economic loss or injury. Thus, a theft committed by one employee against
                  another employee of the same employer would not satisfy the requirement.
                  (d) While nothing in the Act prohibits the use of medical tests to
                  determine the presence of controlled substances or alcohol in bodily
                  fluids, the section 7(d) exemption does not permit the use of a
                  polygraph test to learn whether an employee has used drugs or alcohol,
                  even where such possible use may have contributed to an economic loss to
                  the employer (e.g., an accident involving a company vehicle).
                  (e) Section 7(d)(2) provides that, as a condition for the use of the
                  exemption, the employee must have had access to the property that is the
                  subject of the investigation.
                  (1) The word access, as used in section 7(d)(2), refers to the
                  opportunity which an employee had to cause, or to aid or abet in
                  causing, the specific economic loss or injury under investigation. The
                  term ``access'', thus, includes more than direct or physical contact
                  during the course of employment. For example, as a general matter, all
                  employees working in or with authority to enter a warehouse storage area
                  have ``access'' to unsecured property in the warehouse. All employees
                  with the combination to a safe have ``access'' to the property in a
                  locked safe. Employees also have ``access'' who have the ability to
                  divert possession or otherwise affect the disposition of the property
                  that is the subject of investigation. For example, a bookkeeper in a
                  jewelry store with access to inventory records may aid or abet a clerk
                  who steals an expensive watch by removing the watch from the employer's
                  inventory records. In such a situation, it is clear that the bookkeeper
                  effectively has ``access'' to the property that is the subject of the
                  investigation.
                  (2) As used in section 7(d)(2), property refers to specifically
                  identifiable property, but also includes such things of value as
                  security codes and computer data, and proprietary, financial or
                  technical information, such as trade secrets, which by its availability
                  to competitors or others would cause economic harm to the employer.
                  (f)(1) As used in section 7(d)(3), the term reasonable suspicion
                  refers to an observable, articulable basis in fact which indicates that
                  a particular employee was involved in, or responsible for, an economic
                  loss. Access in the sense of possible or potential opportunity, standing
                  alone, does not constitute a basis for ``reasonable suspicion''.
                  Information from a co-worker, or an employee's behavior, demeanor, or
                  conduct may be factors in the basis for reasonable suspicion. Likewise,
                  inconsistencies between facts, claims, or statements that surface during
                  an investigation can serve as a sufficient basis for reasonable
                  suspicion. While access or opportunity, standing alone, does not
                  constitute a basis for reasonable suspicion, the totality of
                  circumstances surrounding the access or opportunity (such as its
                  unauthorized or unusual nature or the fact that access was limited to a
                  single individual) may constitute a factor in determining whether there
                  is a reasonable suspicion.
                  (2) For example, in an investigation of a theft of an expensive
                  piece of jewelry, an employee authorized to open the establishment's
                  safe no earlier than 9 a.m., in order to place the jewelry in a window
                  display case, is observed opening the safe at 7:30 a.m. In such a
                  situation, the opening of the safe by the employee one and one-half
                  hours prior to the specified time may serve as the basis for reasonable
                  suspicion. On the other hand, in the example given, if the employer
                  asked the employee to bring the piece of jewelry to his or her office at
                  7:30 a.m., and the employee then opened the safe and reported the
                  jewelry missing, such access, standing alone, would not constitute a
                  basis for reasonable suspicion that the employee was involved in the
                  incident unless access to the safe was limited solely to the employee.
                  If no one other than the employee possessed the combination to the safe,
                  and all other possible explanations for the loss are ruled out, such as
                  a break-in, the employer may formulate a basis for reasonable suspicion
                  based on sole access by one employee.
                  (3) The employer has the burden of establishing that the specific
                  individual or individuals to be tested are ``reasonably suspected'' of
                  involvement in the specific economic loss or injury for the requirement
                  in section 7(d)(3) to be met.
                  (g)(1) As discussed in paragraph (a)(4) of this section, section
                  7(d)(4) of the Act sets forth what information, at a minimum, must be
                  provided to an employee if the employer wishes to claim the exemption.
                  (2) The statement required under paragraph (a)(4) of this section
                  must be received by the employee at least 48 hours, excluding weekend
                  days and holidays, prior to the time of the examination. The statement
                  must set forth the time and date of receipt by the employee and be
                  verified by the employee's signature. This will provide the employee
                  with adequate pre-test notice of the specific incident or activity being
                  investigated and afford the employee sufficient time prior to the test
                  to obtain and consult with legal counsel or an employee representative.
                  (3) The statement to be provided to the employee must set forth with
                  particularity the specific incident or activity being investigated and
                  the basis for testing particular employees. Section 7(d)(4)(A) requires
                  specificity beyond the mere assertion of general statements regarding
                  economic loss, employee access, and reasonable suspicion. For example,
                  an employer's assertion that an expensive watch was stolen, and that the
                  employee had access to the watch and is therefore a suspect, would not
                  meet the ``with particularity'' criterion. If the basis for an
                  employer's requesting an employee (or employees) to take a polygraph
                  test is not articulated with particularity, and reduced to writing, then
                  the standard is not met. The identity of a co-worker or other individual
                  providing information used to establish reasonable suspicion need not be
                  revealed in the statement.
                  (4) It is further required that the statement provided to the
                  examinee be signed by the employer, or an employee or other
                  representative of the employer with authority to legally bind the
                  employer. The person signing the statement must not be a polygraph
                  examiner unless the examiner is acting solely in the capacity of an
                  employer with respect to his or her own employees and does not conduct
                  the examination. The standard would not be met, and the exemption would
                  not apply if the person signing the statement is not authorized to
                  legally bind the employer.
                  (h) Polygraph tests administered pursuant to this exemption are
                  subject to the limitations set forth in sections 8 and 10 of the Act, as
                  discussed in Secs. 801.20, 801.22, 801.23, 801.24, 801.25, 801.26, and
                  801.35 of this part. As provided in these sections, the exemption will
                  apply only if certain requirements are met. Failure to satisfy any of
                  the specified requirements nullifies the statutory authority for
                  polygraph test administration and may subject the employer to the
                  assessment of civil money penalties and other remedial actions, as
                  provided for in section 6 of the Act (see subpart E, Sec. 801.42 of this
                  part). The administration of such tests is also subject to State or
                  local laws, or collective bargaining agreements, which may either
                  prohibit lie detector tests, or contain more restrictive provisions with
                  respect to polygraph testing.
                  Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

                  Comment


                  • #10
                    Hey, Scott, next time just post the link, OK?
                    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                    Comment


                    • #11
                      Yep, I understand, Patty, but I am so used to dial up (no longer, though) that my ingrained habits of not going to links stay with me. In those days, it took way too long, so I preferred seeing the relevant portions of the link posted.

                      I could (should) have edited that overly long item and posted the link for those willing and able to see the details.
                      Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

                      Comment


                      • #12
                        Dial up? Oh.......My!!!!!!!!
                        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                        Comment


                        • #13
                          Hey, I still use dial up. Where I live, DSL is not yet an option.
                          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                          Comment


                          • #14
                            Force the Issue

                            Check the laws regarding application for unemployment. Be truthful with the unemployment office.

                            Be careful with personnel. They may already know.

                            You may choose to apply for unemployment. Even if you don't qualify, you will be documenting the dates of suspension.

                            Find another job. Since they didn't fire you, you can be cagey about the identity of your current employer.

                            Comment


                            • #15
                              Tony, this post is a year old. I suspect the situation has been resolved by now.
                              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                              Comment

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