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Court of Appeal:

Forced Polygraph Test May Support Wrongful Firing Claim

In Case of First Impression, Opinion Says Law Providing That Private Employers May Not Demand That Workers Take Test as Condition of Employment Is Sufficiently Related to Public Interest to Warrant Tort Liability

By Kimber Cooley, associate editor

Div. One of the Fourth District Court of Appeal held yesterday that violations of a California law, providing that private employers are prohibited from demanding that employees submit to a polygraph test as a condition of employment, may support a claim for wrongful discharge in violation of public policy.

Saying that the policies underpinning the law are sufficiently related to the public interest as to justify tort liability, the court found that a violation of the statute qualifies for an exception to the general rule that at-will employment may be ended by either party for any reason.

At issue is Labor Code §423.2, which provides:

“(a) No employer shall demand or require any applicant for employment…or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment….

“(b) No employer shall request any person to take such a test, or administer such a test, without first advising the person in writing…of the rights guaranteed by this section.”

Acting Presiding Justice Joan K. Irion authored yesterday’s opinion, saying that the case presented “an issue of first impression” and declaring:

“We conclude a violation of section 432.2 meets the policy requirements for a tortious discharge claim.”

Jury Verdict

The decision affirms a jury verdict in favor of the plaintiff, Steven McDoniel, who claimed that he was terminated for failing a polygraph test that his former employer required him to take in September 2018 after nearly $70,000 in cash and product went missing from the company’s marijuana-growing facility in San Bernardino County. The panel awarded the employee $100,000 in non-economic damages.

However, Div. One said that the trial judge’s determination that McDoniel was entitled to an award of approximately $212,000 in attorney fees under Labor Code §432.6 was in error, noting that the provision indicates that it applies only to “contracts for employment entered into, modified, or extended on or after January 1, 2020” and relates to waivers of rights under the code, circumstances that did not apply to McDoniel’s claims.

In September 2019, McDoniel filed a complaint against his former employer, Kavry Management LLC, asserting a claims for wrongful discharge and a violation of §432.2, among other causes of action. He also sought attorney fees under §432.6 and Code of Civil Procedure §1021.5, which allows for such recovery in certain cases that enforce “an important right affecting the public interest.”

Would Not Have Agreed

McDoniel said he would not have agreed to take the test had he been advised of his right to refuse.

After a jury found Kavry liable in December 2022, San Bernardino Superior Court Judge Gilbert G. Ochoa denied the defendant’s motion for a new trial and request for judgment notwithstanding the verdict in April 2023. McDoniel then requested $547,065 in attorney fees and costs.

Ochoa granted the request in part, awarding him $16,186.23 in costs as well as $212,011 in fees pursuant to §432.6, which provides for such a recovery by prevailing plaintiffs and specifies:

“A person shall not, as a condition of employment, continued employment, or the receipt of any employment-related benefit, require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of…this code….”

Yesterday’s opinion, joined in by Justices William Dato and David M. Rubin, affirms the ensuing judgment in favor of McDaniel except as it relates to attorney fees.

Public Policy Limitation

Irion acknowledged that at-will employees like McDoniel may be fired without good cause but said that an employer’s right to discharge such workers is still subject to the limits imposed by public policy.

She noted that the California Supreme Court has established a set of requirements that a policy must satisfy to support a tortious termination claim, saying that it must be “fundamental,” grounded in an existing statute or the Constitution, and protect the interests of the public rather than an individual.

Applying those standards, the jurist pointed out that “McDoniel’s wrongful discharge claim is based on statute” and protects the public interest, reasoning:

“[S]ection 432.2 inures to the benefit of the public and not merely to McDoniel or any other individual, as it protects all private-sector employees or applicants for employment from being forced to take a polygraph test as a condition of employment…; and requires employers to advise all such employees and applicants at the time of testing of their rights under the statute.”

Fundamental Nature

As to the fundamental nature of the policy at stake, she opined:

“Our Supreme Court has found that polygraph examinations ‘inherently intrude upon the constitutionally protected zone of individual privacy’…; that in enacting section 432.2, ‘the Legislature evinced a belief in the unreliability of polygraph testing and the undesirability of its use as a condition of employment’…; and that it adopted section 432.2 because ‘polygraph testing (1) creates suspense and distrust between employers and employees; and (2) is not entirely accurate and may result in false findings when used by inexperienced persons.’ ”

The justice added:

“Kavry contends that the policy of section 432.2 has a ‘limited scope.’ Kavry, however, cites no legal authority to support this contention….In any event, section 432.2 is very much public. As we have noted, it applies to all private employers in this state and protects employees or applicants for employment from being compelled to take a polygraph or similar examination as a condition of employment or continued employment. Section 432.2 thereby minimizes adverse employment actions that result from tests that our Legislature has deemed unreliable and undesirable.”

Attorney Fees

As to attorney fees, she reasoned that “[f]rom the plain language…of section 432.6, we independently conclude this statute is inapplicable to McDoniel,” remarking:

“First and perhaps most importantly, McDoniel’s employment with Kavry ended in September 2018….

“Second, McDoniel did not ‘waive any right, forum, or procedure’ as set forth in section 432.6,…nor did Kavry retaliate against him ‘because of [his] refusal to consent to the waiver of any right, forum, or procedure,’….”

Addressing §1021.5, Irion wrote:

“We conclude the trial court properly exercised its discretion in ruling that McDoniel’s action sought compensation for wrongs personal to him….None of [the] causes of action were brought on behalf of a large class of persons, much less the handful of other Kavry employees who also took the polygraph examination.”

Saying that the court also “independently conclude[s] McDoniel also cannot satisfy another required factor―the necessity and financial burden of private enforcement,” she pointed to the fact that he sought a substantial financial recovery.

The case is McDoniel v. Kavry Management LLC, D084660.