## Facts

- Yvonne Blackwell worked as a cashier for 53rd-Ellis Currency Exchange, Inc. from about October 1990 until she was fired on April 4, 1991.
- In or around February 1991, the employer discovered a notary seal was missing and identified problems involving missing notary seals and cash shortages.
- In mid-March 1991, the company’s president, Sidney R. Miller, told employees that each would be required to take a polygraph examination in connection with the missing items and shortages.
- On or about March 20, 1991, Blackwell signed a one-page document acknowledging that employees were requested to take the polygraph.
- On March 21, 1991, Blackwell took the polygraph examination; the examiner and Miller told her she passed.
- Despite being told she passed, Blackwell was terminated on April 4, 1991; defendants asserted the discharge was based on alleged misconduct (including forged-check and verification issues).
- Blackwell sued under the Employee Polygraph Protection Act of 1988 (EPPA), seeking statutory remedies, and moved for partial summary judgment on EPPA liability.

## Issues

1. Whether the employer could invoke the EPPA “ongoing investigation” exception without individualized, articulable reasonable suspicion that Blackwell was involved in the loss.
2. Whether the employer provided the written pre-test statement required by 29 U.S.C. § 2006(d)(4), including the specific incident, Blackwell’s access, and the basis for suspecting her.
3. Whether the employer satisfied the EPPA requirement that the written statement be provided at least 48 hours before the examination.
4. Whether Blackwell’s agreement to take the polygraph constituted a waiver of EPPA protections.

## Decision

- The court granted Blackwell’s motion for partial summary judgment on liability under the EPPA.
- The court held defendants did not meet the EPPA’s ongoing-investigation exception because they lacked reasonable suspicion directed at Blackwell and did not comply with the written-statement and timing requirements.
- The court rejected any waiver-by-consent theory, holding EPPA protections are not waivable except in connection with settlement of a pending action or complaint.
- Remedies (including damages and reinstatement) were left for later proceedings.

## Legal Principles

- The EPPA generally prohibits private employers from requesting or requiring employee polygraph tests; statutory exceptions are narrowly construed and require strict compliance with each condition.
- Under the ongoing-investigation exception, “reasonable suspicion” must be individualized and supported by observable, articulable facts; mere access to the property or generalized suspicion of a group is insufficient.
- Before administering a polygraph under the exception, the employer must provide a written statement specifying the incident under investigation, the employee’s access, and the factual basis for suspecting the employee.
- The written statement must be provided at least 48 hours before the examination; failure to satisfy timing or content requirements defeats the exception.
- An employee’s apparent consent to take a polygraph does not waive EPPA rights, except as part of settlement of a pending action or complaint.

## Conclusion

The court found EPPA liability as a matter of law because the employer tested employees based on generalized suspicion, failed to provide the required detailed written statement, did not give the statutorily required 48-hour advance notice, and could not rely on employee consent to cure statutory noncompliance.


Blackwell v. 53rd-Ellis Currency Exch., Inc., 852 F. Supp. 646 (N.D. Ill. 1994)