Summary
In Everitt Lumber Co. v. Industrial Comm., 39 Colo. App. 336, 565 P.2d 967 (1977), the claimants were required, at the time of the polygraph examinations, to sign a waiver of their Fifth Amendment rights against self-incrimination.
Summary of this case from Vaughan v. Shop & Go, Inc.Opinion
No. 76-549, No. 76-576
Decided May 19, 1977.
Employees, discharged as result of refusal to submit to polygraph test during course of theft investigation, were awarded unemployment compensation, and employer sought review.
Orders Affirmed
1. UNEMPLOYMENT COMPENSATION — Polygraph Tests — Theft Investigation — Employees — Refused to Waive — Fifth Amendment Rights — Not a Basis — Denial of Benefits. Where, in the course of a theft investigation, employees refused to sign certain waiver forms relative to their Fifth Amendment protections in connection with the taking of polygraph tests and were thereby discharged, their action in invoking the protection of the Fifth Amendment, or refusing to waive its protections, may not be used as the basis for denying them unemployment compensation benefits.
2. Polygraph Tests — Theft Investigation — Employees — Refused to Waive — Fifth Amendment Rights — Resulting Discharge — Responsibility of Employer — Entitled to Full Benefits. Where polygraph tests were to be administered to employees in the course of a theft investigation, but the test would not be administered by the testing agency unless the particular employee signed a waiver form that, in effect, waived the Fifth Amendment rights against self-incrimination, the employer, by requiring its employee to submit to the demands of the testing agency or be discharged, must be deemed basically responsible for the resulting terminations; accordingly, full awards of unemployment compensation benefits were warranted for those employees so terminated.
3. Industrial Commission — Presumption — Implement Act — Regular Manner — No Indication — Basic Requirements — Not Met — Claimants — Deemed in Compliance. The Industrial Commission is presumed to carry out its official duties with respect to implementation of the Unemployment Compensation Act in a regular manner, and thus, where the records of unemployment compensation proceedings contained no indication whatsoever that either of the claimants involved in those proceedings had failed to meet the basic eligibility requirements of the statute, each of those claimants must be deemed to have met those requirements.
Review of Orders of Industrial Commission of the State of Colorado
Allen, Mitchell, Rogers Metcalf, Jack D. Vahrenwald, for petitioner.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Louis L. Kelley, Assistant Attorney General, for respondent Industrial Commission of the State of Colorado (Ex-Officio Unemployment Compensation Commission of Colorado).
No appearance on behalf of respondents Donna M. Weiner and Elvah D. Brockman.
Everitt Lumber Company (employer) seeks in this consolidated review to set aside two final orders of the Industrial Commission which granted claimants, Donna M. Weiner and Elvah D. Brockman, full awards of unemployment compensation benefits under § 8-73-108(7), C.R.S. 1973.
Claimants, former employees of Everitt Lumber Company, were terminated by the company for refusing to take a polygraph test which the company, in an investigation of inventory losses, "requested" all employees to take in January 1976. Both Brockman and Weiner had, prior to the company "request," signed forms giving their consent to taking such a test at any time during the course of their employment.
Following their discharges, Brockman and Weiner each filed claims for unemployment compensation benefits, and hearings were held on their claims before different referees. At their respective hearings, the claimants each testified that they had been told by co-employees who had already taken the test that a number of the questions asked thereon were very personal and degrading. Weiner testified that she had asked the individual administering the test whether certain questions were on it, and upon receiving an affirmative reply, had informed him she would not answer such questions. She also testified that she had refused to sign what she termed a "legal waiver form," and that because of her refusal to sign the waiver and answer all questions, the individual administering the test would not allow her to take it.
A representative of the employer testified that he had agreed to sign a written statement for Weiner that any personal information acquired by the testing agency not be released to anyone by the agency, but there is no indication in the record that the testing agency would have been bound to honor such an agreement.
Following the hearings, the respective referees each found that the questions asked on the polygraph test were "offensive" in nature, and that the claimants had not acted unreasonably in refusing to take the test. Consequently, each referee concluded that the employer was basically responsible for the terminations, and each employee was granted a full award of unemployment benefits pursuant to § 8-73-108(7), C.R.S. 1973, and Industrial Commission Regulation No. 39(B). The employer then appealed both awards to the Industrial Commission, and supplied the Commission with copies of the questions asked on the polygraph test, and copies of the waiver form each employee taking the test was required to sign by the testing agency. The Commission thereafter adopted and affirmed the awards of the referees, from which orders the employer seeks review.
I.
As framed by the parties, the principal issue raised on these reviews is whether there is sufficient evidence to support the conclusion that the employer was basically responsible for the terminations. The employer contends there is not, and argues that having previously obtained the consent of its employees to the taking of the polygraph test, it could not be held responsible for their subsequent refusal to take the test or for the terminations because of such refusals.
We need not decide whether prior consent to take such a test and subsequent refusal would operate to bar an award of benefits in an appropriate case, see Swope v. Florida Industrial Commission Unemployment Compensation Board of Review, 159 So.2d 653 (Fla.App. 1963); see generally Note, 35 Louisiana L. Rev. 694 (1975), for here, more was required of the employees than merely taking the test.
Before the testing agency would administer the polygraph test it required each employee to sign a certain waiver form. A review of the record and the actual forms discloses that these forms would have had the effect of waiving the signing — employees' Fifth Amendment rights against self-incrimination.
Although these forms were not presented at the hearings, the employer having subsequently sent them to the Commission, it cannot now complain of their use. See People v. Shackelford, 182 Colo. 48, 511 P.2d 19 (1973); Palmer v. Gleason, 154 Colo. 145, 389 P.2d 90 (1964).
Although both employees testified that they had given their written consent to taking a polygraph test, there was no evidence that they had also consented to waiving their Fifth Amendment rights in connection with the taking of such a test. Nor did the employer allege that any waiver of such rights had occurred either through the employees' execution of the consent form or otherwise.
We intimate no view as to whether such a clause, if included in a consent form," would be valid.
[1] The question thus presented is whether these employees, who, in the course of a theft investigation, refused to waive the protections afforded by the Fifth Amendment, are precluded from receiving an award of unemployment compensation benefits because of that refusal. We hold that invoking the protections of the Fifth Amendment, or refusing to waive its protections, may not be used as the basis for denying these claimants unemployment compensation benefits.
Whether denial of unemployment compensation benefits due solely to a private employee's assertion of Fifth Amendment rights would be precluded on the basis that such action would amount to "state action," under the Fourteenth Amendment of the United States Constitution, by involving the state in requiring private employees to choose between surrendering their constitutional rights or unemployment compensation benefits, and thus violate the Fifth Amendment of the United States Constitution and Article II, secs. 18 and 25, Colo. Const., is an issue we need not determine. See Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964) (Douglas, J., concurring opinion); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1947).
See Ault Unemployment Compensation Case, 398 Pa. 250, 157 A.2d 375 (1960); cf. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968).
[2] Here, the test would not be administered by the testing agency unless the particular employee signed the waiver form, and it follows that the employer, by requiring its employees to submit to the demands of the testing agency or be discharged, must be deemed basically responsible for the terminations. Accordingly, full awards of benefits were warranted in the instant cases pursuant to § 8-73-108(7), C.R.S. 1973, and Regulation 39(B).
Our conclusion in this regard dispenses with the necessity of discussing the various assertions made by the employer regarding the applicability of the no award and 50% of full award sections of § 8-73-108, C.R.S. 1973.
II.
The employer also argues that neither referee made findings relative to whether the claimants met the basic eligibility requirements of § 8-73-107(1), C.R.S. 1973, which are a prerequisite to receiving unemployment compensation benefits. Accordingly, it is asserted that neither claimant is entitled to receive benefits.
[3] However, the records contain no indication whatsoever that either claimant failed to meet the basic eligibility requirements of § 8-73-107(1), C.R.S. 1973. The Industrial Commission is presumed to carry out its official duties with respect to implementation of the Act in a regular manner, see Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974); Town of Frisco v. Brower, 171 Colo. 441, 467 P.2d 801 (1970), and thus, absent a contrary showing, a claimant must be deemed to have met the basic eligibility requirements.
Orders affirmed.
JUDGE PIERCE and JUDGE STERNBERG concur.