## Facts

- Ollie Leon Harmon III worked for CB Squared Services Inc., a Jiffy Lube franchisee in Virginia, and rose from service technician to Customer Relations Manager with responsibility for multiple locations.
- Harmon told CB Squared executives that an individual had offered him a job with a competing franchisee; CB Squared’s president investigated and sought to corroborate Harmon’s account.
- The president asked Harmon to voluntarily submit to a polygraph examination to verify the account; Harmon agreed and took the polygraph on October 15, 2008.
- Harmon asserted CB Squared provided only directions to the examiner’s office and no other written documents relating to the polygraph.
- CB Squared was informed the polygraph indicated “deception,” confronted Harmon with the result the next day, and demoted and reassigned him.
- Harmon indicated he would resign in two weeks but later claimed he was effectively terminated; CB Squared characterized the separation as a voluntary resignation.
- Harmon sued under the Employee Polygraph Protection Act (EPPA), alleging CB Squared (1) requested a polygraph, (2) accepted/used/referred to the results, and (3) demoted and/or terminated him based on the results.
- The parties filed cross-motions: Harmon sought partial summary judgment on the EPPA request/use counts; CB Squared sought summary judgment on all counts and invoked the EPPA “ongoing investigation” exemption.

## Issues

1. Whether CB Squared violated the EPPA by requesting that Harmon submit to a polygraph examination.
2. Whether CB Squared violated the EPPA by using, accepting, or referring to Harmon’s polygraph results in connection with adverse employment action.
3. Whether CB Squared could avoid liability under the EPPA’s “ongoing investigation” exemption for investigations involving economic loss or injury.
4. Whether Harmon was terminated (including constructive discharge) or voluntarily resigned, for purposes of EPPA liability and remedies.

## Decision

- The court granted Harmon’s motion for partial summary judgment on the EPPA request and use/reference counts.
- The court denied CB Squared’s motion for summary judgment on all counts.
- The court held CB Squared could not invoke the “ongoing investigation” exemption because it failed to satisfy EPPA prerequisites, including required written notice to the employee.
- The court left for trial factual disputes concerning whether Harmon was terminated or voluntarily resigned and issues tied to damages.

## Legal Principles

- The EPPA broadly prohibits employers from directly or indirectly requesting or suggesting that an employee take a lie detector test and from using, accepting, or referring to lie detector test results.
- The EPPA “ongoing investigation” exemption is narrow and requires strict compliance with statutory and regulatory conditions.
- As a condition of the exemption, the employer must provide the employee a detailed written statement identifying the specific incident under investigation and related required information; failure to provide the required written statement defeats the exemption.
- An employer’s reliance on polygraph results in close temporal connection with adverse action may establish prohibited “use” or “reference” to the results under the EPPA, even if the employer disputes causation or characterizes the separation as voluntary.

## Conclusion

The court held that CB Squared violated the EPPA by requesting Harmon take a polygraph and by using or referring to the results, and it rejected CB Squared’s reliance on the ongoing-investigation exemption due to noncompliance with mandatory written notice requirements, while reserving disputed termination and damages questions for trial.


Harmon v. CB Squared Servs. Inc., 624 F. Supp. 2d 459 (E.D. Va. 2009)