had. He did not write anything down, and I am not sure now whether he asked me all these questions before he hooked me up or while I was on the machine. After the test, he looked puzzled and said something like, "Are you sure this is it?" or "Is this all?" I felt like he was not satisfied with the way the test had come out. He asked me some questions about money at the pottery, and I told him that I sometimes found money when I swept the floor. We had a cup over the register, and when we found money on the floor, we would put it there for anyone who needed some extra change for cokes or things. He then wrote up a statement saying that I had stolen $5 or $10 from the pottery. I refused to sign it. He got mad and threw the papers across the desk and onto the floor. At that point I got very nervous and wondered what in the world was going on. I was still doing 100 shakes a minute-as I am doing now. He would not test me again if I would not sign the paper. I agreed to sign the paper if he would give me another test, and the test would clear me. He retested me-it lasted about 5 minutes or less, because he went through the questions real fast. I spent no more than 20 minutes with the examiner that day. After that, he showed my "confession" to my employer. He did not show them the test results. I had reported back to my building and was informed later that I had no job. One of the employees walked up to me and stated that he stole every day, and he had taken the test, too, but had not gotten caught. I felt betrayed, because I had built myself up on the job and had worked hard for my employer, and all of a sudden everything was gone. I was branded as a thief. I could not face the world, my friends, and my kids. When I told my kids, they felt bad about me being fired, and they could not understand because they said, "Mama, you don't steal." They had a rough time in school, too, after that because other kids said that their mother had been fired because she stole. My friends were supportive. They came by and told me I should fight the Pottery on this. I did not talk to people other than my friends and family about it, because it was too painful. I cried many nights about it. I went to a doctor and got some pills to help me. One day, about 2 weeks later, I just put it in my mind that I had to go and look for a job. While I was applying for a job, I told the owner about what had happened to me, and he told me that he had heard about it. That made me feel bad, because I did not get the job, and because someone in the community knew about it, and I thought a lot of people must have been talking about it. I applied for a number of jobs, but no one would hire me. I finally went to the unemployment office. I did not think I would get any benefits, but I did. The Pottery appealed the unemployment decision, and I went to Legal Aid. They helped me win again, and they told me that I might sue the Pottery and the polygraph examination company. I won my case against the polygraph examiner and his company. And it took a number of years to live the story down. Now, if I have to look for a job, I tell the employer what happened to me and that I will not take a polygraph test. If the test is required, I do not want the job. So far that has worked well for me. I want to thank the committee for letting me tell my story. I will be happy to answer any questions. The CHAIRMAN. Thank you, Ms. Braxton. Let us turn to Mr. Wynn before we ask questions. Mr. Wynn, we are happy to welcome you to the committee, and we will turn the time over to you. Senator KENNEDY. Mr. Chairman, I too want to welcome both of our witnesses here-Ms. Braxton, for your testimony. It is always difficult to raise these kinds of questions, and it is enormously helpful to our committee. We want to thank you very much. And I want to welcome Bill Wynn, who has spent a great deal of time on this issue, as you know, Mr. Chairman, a great deal of analysis. He has had very important experience in this area, and his testimony will be very helpful to us. Bill, I am glad to see you. Mr. WYNN. Thank you, Mr. Chairman. My name is William H. Wynn. I am international president of the United Food and Commercial Workers International Union, AFL-CIO. On my left is Mike Tiner, director of Government affairs. The UFCW represents 1.3 million members throughout 700 local unions in the United States and Canada. The UFCW and its local unions have contracts with tens of thousands of employers throughout the food processing, retail sales, leather and shoe manufacturing, and other industries. I appreciate the opportunity to appear today to present the views of the labor movement on the widespread use and abuse of socalled lie detectors in the workplace. With the committee's permission, I would like to briefly summarize my thoughts on this problem and submit my written statement in its entirety for the record. For a variety of reasons, American business managers are turning increasingly to the use of several pseudoscientific devices in their attempts to ferret out potentially dishonest employees. Available data puts the number of so-called lie detector tests at more than 2 million each year, more than four times the number given just 10 years ago. The committee will undoubtedly hear from polygraph adherents that the use of lie detectors is essential in combatting internal theft. Theft by those within the organization can hurt, even cripple a business. It cheats honest workers out of the fruits of their labors and must be combated by both workers and management together, using all reasonable means available. But the true extent of the losses due to employee theft is in doubt. Previously congressional testimony put the annual loss at between $15 and $50 billion. Yet a 1982 study conducted for the Justice Department by the National Institute of Justice concluded that "approximations of employee theft seriousness to society are at best educated guesses." The same Reagan administration study estimated that securities fraud, corporate kickbacks, embezzlement, and insurance fraud cost businesses three times more than employee pilferage. And more than one-half of the losses attributable to "employee theft" resulted from shoplifting. Placing employee theft in perspective with other forms of business loss also raises considerable doubt as to what constitutes "reasonable means" for controlling these losses. Raising "employee theft" as a justification for using polygraph examinations puts a price tag on the Bill of Rights. Polygraph proponents believe that if they can raise the price high enough, Congress will overlook how so-called lie detectors pervert our principles of due process. If they truly believed that their machines prevent losses, then they would be here urging the Congress to mandate polygraph examinations of corporate officers and directors in order to curb kickbacks, embezzlement, and securities and insurance fraud; or, seeking approval to force customers to submit to lie detector tests before they shop. Indeed, they might even contend that polygraphs have a role in debates between political candidates so that the voting public would be able to choose the more "truthful" candidate. The CHAIRMAN. Let us not go that far here, now. [Laughter.] But not even the brashest polygraph apologist would propose any of the above. No-they nominate workers and potential workers for the humiliation of being forced to submit to the 20th century equivalent of the dunking stool. Polygraphing employees is neither the proper nor the best way for employers to reduce their losses. The National Institute of Justice study on employee theft made some important conclusions regarding how best to combat the problem, and I quote: More importantly to companies interested in reducing theft and counterproductive behavior is a sensitivity to the perceptions and attitudes of the work force. In short, we found that those employees who felt their employers were genuinely concerned with workers' best interests reported the least theft and deviance. The study further concluded, and I quote: We found that applying the law enforcement model to theft does not work very well. For example, assessing previous theft activity outside the work setting by using polygraph exams has little relevance to future workplace behavior. In short, Mr. Chairman, the best way to control these losses is through good employment practices. We strongly believe that polygraph testing is not a good employment practice by anyone's definition. There is a tendency to focus on the abuse associated with polygraph testing. There are documented cases of it being used for intentional race discrimination. There are sensational cases in which sexual misconduct occurs during examination and the intrusive nature of many of the questions asked, ranging from sexual activity questions to those dealing with political or union beliefs. These violations of workers' fundamental rights are an affront to basic human dignity. But the most pervasive abuse is that the ma chine mislabels innocent people as liars. Both employers and employees are hoodwinked into believing the machine can distinguish truth from deception, and deception from nervousness, anxiety, fear or intimidation. In an attempt to inform the public about the real limitations of the polygraph, the American Psychological Association recently and unanimously adopted a resolution stating that polygraphs are unreliable. In State after State, the polygraphers try to divert attention from the real problem-the machines just do not work. In some States, they have successfully convinced legislators that the polygraph problems will be solved by licensing statutes, or statutes which prohibit asking certain questions. But the use of polygraphs continues to increase, and the number of workers wrongfully denied employment opportunities continues to climb. Mr. Chairman, the use of polygraphs on workers is the abuse. The testing procedure is based on fear and implemented through intimidation. It is a psychological rubber hose which has no place in today's workplace. For a moment, put yourself in the position of the worker. You apply for a job, and everything goes well. You are told the job is yours, but first you have to pass a lie detector test. You have nothing to hide and want the job, so you agree. You take the test and then are informed that you failed. You are a "liar," unfit for employment. This is the saddest irony of the process. You told the truth in the test, but were branded a "liar." Now, when you apply for any other job, how do you answer the question: "Have you ever failed a polygraph examination?" I have personal knowledge that through sheer intimidation, some polygraph exams result in confessions of theft or other undisclosed information when there was none. But so would the rack and thumbscrew. Yet, none of these devices are appropriate in today's workplace. It is time to give today's workers the dignity and self-respect they deserve in employment. Mr. Chairman, the Congress has a history of setting uniform workplace standards for American workers. I urge the committee and the Congress to act expeditiously to ban the use of lie detectors in private sector employment by enacting Senate bill 1815. Finally, Mr. Chairman, we do not condone theft, nor do we condone lies. As Mark Twain said: "When in doubt, tell the truth." And the truth is that lie detectors do not always tell the truth. The truth is, employers who require the tests are not always truthful about the reasons for the test. The truth is that workers' lives have been ruined by half-truths, and only after it is too late was it discovered that someone got ahold of the wrong half. In closing, Mr. Chairman, let me take this opportunity to thank you personally and Senator Kennedy for your sponsorship of S. 1815 and your leadership to correct this abuse of workers' rights. The CHAIRMAN. Thank you, Bill. We appreciate having you here. [The prepared statement of Mr. Wynn and responses to questions submitted by Senator Quayle follow:] UFCW STATEMENT OF WILLIAM H. WYNN INTERNATIONAL PRESIDENT UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION Thank you, Mr. Chairman, and members of the Committee, for inviting me to testify on the use and abuse of so-called "lie-detectors" in the workplace. My name is William H. Wynn, and I am the International President of the United Food and Commercial Workers International Union (AFL-CIO). The UFCW has some 1.3 million members organized in 700 local unions throughout the United States and Canada. The UFCW and its local unions have contracts with tens of thousands of employers throughout the food processing, retail sales, leather and shoe manufacturing and other industries. I come to this hearing strongly supporting legislation to ban the use of intimidating, intrusive and inaccurate "lie detector" tests from America's workplaces. My statement is divided into four parts. Part I deals with the employment and law enforcement use of polygraphs. Part II gives an overview of federal legislative efforts to prohibit or limit polygraph use, and also reviews the current status of state limitations and prohibitions. Part III is a survey of the field and laboratory studies conducted on the validity of polygraph testing, and Part IV reviews the growing use and abuse of other sorths of so-called "lie-detectors" the voice analyzers. William H. Wynn Jerry Menapace International United Food & Commercial Workers International Union, AFL-CIO & CLC 1775 K Street, NW Washington, DC 20006 (202) 223-3111 |