Halpern, Larner and King.
Defendant Vornado, Inc. (Vornado), a New Jersey corporation, was convicted in the Brick Township Municipal Court and in a subsequent trial de novo in the Ocean County Court, of violating N.J.S.A. 2A:170-90.1, which provides:
Employer requiring lie detector test as a condition of employment.
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. [Emphasis supplied]
Specifically, the judge at the trial de novo found that defendant's supervisory employees had exerted "psychological influence" upon employee Doreen Layton to take a polygraph
(lie detector) test, and that, as a result of Ms. Layton's refusal to take the test, defendant terminated her employment. Vornado was fined $250 for the violation, plus court costs.
In November 1974 security employees at the Brick Township Two Guys store discovered a large number of price tags, which had been removed from various articles of merchandise, hidden in the security personnel locker area of the store. Later the same day two employees approached the assistant store security manager, Tom Conklin, and offered to take polygraph tests. At a party given by the store security manager the following evening the theft was discussed.
Thereafter John Fontana, the Brick Township store supervisor, contacted James Smith, Vornado security supervisor, and explained to him that certain employees had requested that they be given polygraph tests. On November 26, 1974 Smith arrived at the store with a polygraph machine.
On that date Smith individually questioned various security employees, including employee Layton, about the theft. Shortly after leaving the security office Layton was confronted by her supervisor, Ms. Dosois, who asked her why she had balked at the request to take the test. Dosois told Layton she "wished" all security personnel would take the test because the incident was causing unrest in the department.
A few days later supervisors, Fontana, Conklin and Dosois summoned Layton to the security office. Store supervisor Fontana told Layton she was being transferred to a different store to remove the "cloud" from the department. Layton did not report to her new assignment and as a result was terminated.
Defendant Vornado challenges this conviction on two similar grounds.
I. There can be no conviction under N.J.S.A. 2A:170-90.1 if no lie ...