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State v. Berkey Photo Inc.

Decided: March 29, 1977.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BERKEY PHOTO INCORPORATED, DEFENDANT-APPELLANT



Halpern, Michels and Botter.

Per Curiam

[150 NJSuper Page 57] Defendant was convicted in the municipal court and in the County Court, on appeal de novo on the record below, of violating N.J.S.A. 2A:170-90.1. This

statute makes it a disorderly persons offense for an employer to

Defendant asked certain employees to take a lie detector test as an aid in investigating a theft from its plant in Clifton, New Jersey. On this appeal defendant contends that the statute was not violated primarily because the initial suggestion of using lie detector tests came from the police and, contrary to the trial judge's conclusion, the employees took the tests voluntarily and not as a condition of continued employment within the meaning of the statute.

The underlying facts are not in dispute. On October 22, 1974 defendant reported the theft of a case of cameras to the Clifton Police Department. Two detectives went to the plant and met with defendant's director of security, Jim Ahern. It was established that during the preceding weekend the cameras had been stolen from a small area of the plant which had been accessible to only six employees and an alarm repairman employed by an independent contractor.

The detectives interviewed four of the employees and asked each if they would be willing to submit to a polygraph test. The four agreed to do so. Thereafter the detectives recommended to Ahern that polygraph tests be used in the investigation. The detectives also recommended that defendant arrange for the tests privately because the Clifton Police Department did not have a polygraph team and there would be a delay of a month or more if the State Police were asked to perform the test.

Ahern conferred with the personnel director, Thomas Glynn, and they decided to ask the employees to take the test. Ahern and Glynn, and in some cases Ahern alone,

asked the six employees as well as the alarm repairman to take the test. All agreed to do so and signed "waiver" forms stating that they were taking the test voluntarily. For the purpose of this appeal we accept the finding that all were informed in advance that under the laws of New Jersey no employer may require a person to take a polygraph test as a condition of employment or continued employment.*fn2

The six employees and the alarm repairman submitted to the tests. The questions were limited to establishing knowledge or involvement in the particular theft, except that preliminary questions were asked to relieve tension and nervousness. All persons tested were "cleared of involvement," except one employee. The test established his involvement and he confessed his guilt while the test was being administered.

N.J.S.A. 2A:170-90.1 precludes an employer from influencing, requesting or requiring an employee to take or submit to a lie detector test as a condition of employment or continued employment. There is no question that defendant here did request the employees to take or submit to the test. It makes no difference that the police initiated or recommended the procedure. The sole issue before us is whether, in the circumstances of this case, the request to take the test "was a condition of employment or continued employment" within the meaning of the statute. On this issue the opinion of our Supreme Court in State v. Community Distributors, Inc. , 64 N.J. 479 (1974), aff'g

123 N.J. Super. 589 (Cty. Ct. 1973), is persuasive and, in our ...


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