California employment law disfavors polygraph tests almost as much it disfavors non-compete agreements.
Labor Code section 432.2 prohibits a private sector employer from requiring an applicant or employee to take a polygraph test as a condition of employment or continued employment. That law bars a private sector employer from even asking anyone to take such a test without first informing the person in writing at the time of the test of their right to refuse to take it.
Wrongful termination claim
In McDoniel v. Kavry Management, LLC, the San Diego-based division of the California Court of Appeal recently upheld a $100,000 jury award in favor of Steven McDoniel, a former assistant grower at Kavry Management’s San Bernardino area licensed marijuana-growing facility. McDoniel was fired in 2018 for failing a polygraph test in which he was questioned about his role in a recent theft at the facility. Kavry did not advise McDoniel of his right to refuse to take the test. McDoniel claimed he believed he had no choice but to take the test and testified he would have refused to do so if Kavry had advised him of his right to decline.
The novel question the appellate court confronted was whether McDoniel had asserted a valid claim for wrongful termination in violation of fundamental public policy by claiming Kavry violated section 432.2. The court concluded McDoniel had asserted a valid claim.
To prevail on a claim an employee’s termination violated public policy, an employee must prove, among other things, that the law the employee claims the employer offended protects the interests of the broader public and not just the employee’s individual interests.
McDoniel satisfied this requirement, said the court. Section 432.2 protects all private-sector employees and applicants from being forced to take a polygraph test as a condition of employment or continued employment, and requires employers to advise all employees and applicants at the time of testing of their right to decline the test.
Right to refuse polygraph ‘firmly established’
McDoniel also showed that section 432.2 rights were firmly established when he was fired. The prohibition on private sector employers mandating polygraph tests was enacted in 1963 and the requirement that applicants and employees be given written notice of their right to refuse to take the test was enacted in 1981. That was decades before McDoniel took the test in 2018.
Moreover, the court concluded the written notice requirement was “substantial” and “fundamental.” The Legislature enacted it, according to legislative committee analysts, “to curb some of the abuses suffered by (California) workers concerning the administration of and the submission to polygraph tests” without knowing their right to refuse to take such tests. Section 432.2, said the court, “minimizes adverse employment actions that result from tests that our Legislature has deemed unreliable and undesirable.”
No award of attorney’s fees
American jurisdictions generally require each side to bear its own attorney’s fees, unless a statute or contract provides otherwise. Code of Civil Procedure section 1021.5 authorizes a court to award fees where a party has prevailed in an action that “resulted in the enforcement of an important right affecting the public interest” if the general public or a large class of persons has obtained a significant monetary or non-monetary benefit. This is the “private attorney general” exception to the American rule.
The court of appeal held that section 1021.5 did not apply. McDoniel’s lawsuit was brought for his benefit alone, not “on behalf of a large class of persons, much less the handful of other Kavry employees who also took the polygraph examination” after the theft at the facility. The court noted section 1021.5’s requirement that the benefits of the lawsuit extend well beyond the individual plaintiff is not to be confused with the separate issue of whether the employer violated a substantial and fundamental public policy in terminating an employee.
California law doesn’t outright bar private sector employers from using polygraph tests. But employers face serious consequences if employees are not advised in writing of their right to refuse to take the test.
Update: The Department of Industrial Relations has posted the “Know Your Rights” pamphlet in English and Spanish that employers must distribute to their employees beginning Feb. 1.
Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.