Defendant, owner and operator of a drug store known as "Drug Fair," appeals from its conviction in the Freehold Township Municipal Court on November 9, 1972 of violations of N.J.S.A. 2A:170-90.1 in that defendant did influence, request or require three of its employees, as a condition of employment or continued employment, to take or submit to lie detector tests. The three employees, all of whom took the test at the request of the employer, were Harold Cohen, Isabelle Bayer and Matilda Nipps.
Harold Cohen was employed on April 27, 1971 and was asked at the time of hiring if he would take a lie detector test. After being told that he did not have to take the test, he signed a consent form and took the test on May 11, 1971. His employment was terminated seven months later for reasons unrelated to the polygraph test.
Isabelle Bayer was employed on October 19, 1971 and was asked when applying for the job if she would be willing to take a lie detector test, though also told she was not so obligated. She, too, consented to the test, signed a waiver form, and took the test on November 4, 1971. Her employment was terminated immediately upon conclusion of and as a direct consequence of the test, which revealed that she had previously been involved in a larceny.
Matilda Nipps had previously been employed by Drug Fair and was reemployed on September 22, 1971. Like Cohen
and Bayer, she was asked if she would take the test, signed a waiver form, and was told that she did not have to take the test. She took the polygraph test on October 5, 1971. Her employment was terminated a short time before December 25, 1971 because of an hours dispute which was unrelated to the test.
A fourth employee, Anna Battle, took the test at one time, but had refused to do so on other occasions. Her employment status was unaffected by her refusal.
Defendant first contends that the statute is unconstitutional in that it deprives defendant of the ability to protect its property and, incidental thereto, asserts that the right of privacy of the employee is overshadowed by the property rights of the employer. Defendant also claims exemption from the statute since it is in the business of dispensing narcotics and dangerous drugs, and lastly asserts that there was no violation of N.J.S.A. 2A:170-90.1 in that the lie detector tests were not given as a condition of employment and continued employment.
In approaching the problem it is in order to survey briefly the history of the statute, N.J.S.A. 2A:170-90.1 (L. 1966, c. 114), which provides as follows:
Any person who as an employer shall influence, request or require an employee to take or submit to a lie detector test as a condition of employment or continued employment is a disorderly person.
The statute was enacted on June 17, 1966 after four previously unsuccessful attempts at passing a similar law. Since enactment only one other bill has been introduced in the Legislature respecting lie detectors in private enterprise (Assembly Bill 1518 ), and that bill proposes upgrading a violation of the statute from a disorderly persons offense to a misdemeanor.
On the issue of constitutionality defendant asserts a property right in the protection of its business, claiming such right to be superior to any personal privacy rights protected
by the statute, which it contends is unconstitutional on the grounds that it denies it protection of its ...