Dear Human Resource Professionals, Managers, and Employees:

There are two Civil Service Commission cases that present food for thought. They are the Appeal of Sallie Burras, Docket No. S-11953 and the Appeal of Ernestine Jackson, Docket No. S-11978 issued on October 14, 1998. They deal with polygraph examinations.

The appointing authority operated an institution for the developmentally disabled and believed that one or more of its Resident Training Specialists had abused a particular resident. Investigation ensued with statements taken from a number of employees. The two appellants named above cooperated in the investigation, and neither was suspected of having abused the resident. This in-house investigation took a few months and in the view of the appointing authority was inconclusive. It was then decided to conduct polygraph examinations of a number of employees.

The appeals mentioned above arose separately and with somewhat distinguishing facts, but also with very similar facts. In one case the employee was told a few hours before the examination that she had to sit for such examination, and she reported to the exam, but refused to sit for the exam. She said she told the examiner, who was a private examiner on contract, that she had fears about the exam which need only be described here as irrational. The examiner said that she did not mention these fears. The appointing authority testified that it was important to the investigation that the employee sit for the exam. Following this employee's refusal, no further effort was made to obtain the exam, the employee was allowed to work for several months, and the employee was then terminated.

In the other case, the employee was given approximately one day notice, but had doubts about whether she was required to sit for the exam. She contacted her union representative, who was a long time employee at the facility, who told her he did not know whether she had to sit for the exam or not. He contacted higher authority with the union who told him appellant did not have to sit for the exam. Consequently, she reported and refused. The local union representative, however, contacted counsel for the union who advised that this employee did have to sit for the exam. He called the employee who said she would sit for the exam, the union representative then called the associate administrator of the facility who advised the union representative to try to contact the polygraph examiner to prevent him leaving before the employee could arrive, the union representative then tried to contact both the examiner and the employee, but failed because the examiner had left and the employee had gone to pick up her children after school. This particular day was the employee's day off. Again, nothing took place for several months while the employee continued to work. The employee was then terminated. Both of these employees had been employed at the same facility for seventeen years with clean records. Neither was suspected of abuse.

The Civil Service Commission reversed the terminations and awarded the maximum attorney fees. The case was decided neither on the usefulness of a polygraph exam or on the question of whether an employee must obey an order of a manager, but the case was decided on the fairness of the treatment of the employees and the apparent goal of the appointing authority. On this latter point, the polygraph examiner had testified that because the in-house investigation had gone on for several months it was not necessary that abbreviated notice of the exam be given to the employees. In both cases, the notice advising of the need to sit for the exam was typed several days before it was given. In both cases more advance notice would not have impaired the results of the examination, and would have allowed the resolution of the irrational fears and of the need to take the exam. Additionally, even though the appointing authority deemed it important in the prosecution of the investigation to obtain the results of the exam, the appointing authority made no subsequent effort to do so, but allowed the employees about whom it had no suspicions regarding resident abuse to continue to work with residents until they were terminated. What the appointing authority was left with was no polygraph examination and the loss of two seventeen year employees who had provided good service throughout their tenure. The Commission recognized that a manager in state government in deciding whether or not to effect a personnel action bears a responsibility to make a decision that best serves the citizens of the state.

Employees are the tools that managers use in order to accomplish the goals of the organization. When those employees have worked for us for a significant number of years, they become a valuable asset. We have invested a great deal of time and money in cultivating this asset, and, also, the employee has invested a significant portion of their life in presenting themselves as an asset. These assets should not lightly be thrown away. When the employee makes a mistake, the question should be asked whether the employee has proven themselves no longer fit for service, or whether the employee could be more appropriately directed and trained in order to provide good service. After an employee has worked for a significant number of years with a clean record, there is an increasing indication that the employee can be directed and trained. Unquestionably, an employee can prove themselves unfit for continued service, but it is a conclusion not lightly reached, and especially so with a long term employee. Once these assets have been developed at taxpayer's expense, we have an obligation not to discard them unless absolutely necessary.

In a recent conversation with a second line engineer supervisor in a large chemical plant on the river, he spoke to me of the screening and training process of subordinate employees. His company has a six month probationary period after which an employee acquires a status that requires a higher review prior to termination. He spoke with pride of the fact that none of the people he had hired had ever been separated for work related reasons. He was proud of this fact because he felt it demonstrated the success of his efforts in screening, and in further training and directing the activities of his subordinates. He was successful in using the human assets under his control. Our managers should strive for the same pride for the same reasons. Too often, our managers do nothing in terms of training and directing employees until they decide the employee simply must be terminated. This is true with both probationary and permanent employees. We have a responsibility to the taxpayers of this state, but it is not to achieve a higher rate of termination of our employees. Hopefully, our Performance Planning and Review system will encourage more direction and training.

Lets us go back to polygraph exams just a moment. The Employee Polygraph Protection Act of 1988 appearing at 29 U.S.C. 2001 et seq. was enacted by the United States Congress to regulate

the circumstances and conditions under which polygraph examinations may be given, and to give certain rights to employees. In pertinent part, the law requires at least two days notice in writing of the fact of the coming exam along with notice of the right to consult with counsel or an employee representative. The purpose of the notice is said to provide a sufficient opportunity prior to the exam for the employee to resolve concerns about the exam. This Act specifically does not apply to state employers. This fact, however, does not mean that we may run to the other end of the spectrum in subjecting our employees to polygraph exams. If you expect to have to use polygraph exams, please tell your employees. Give them an opportunity to resolve their concerns. The facts in the case above show that two long term employees, the union representative and one of the employees, did not know they had the obligation to sit for the exam. If you truly need the results of a polygraph exam, give your employees an opportunity to resolve their concerns so that you may get those results in a timely manner.

In part, this newsletter evolved into something of a pep talk about dealing with employees. If you will bear with me, I would like to continue in that vein. It is on the subject of discrimination.

The word discrimination has a great many negative connotations, and I am not going to use it as I speak on this subject. The exercise of discretion in drawing distinctions between and among subordinate employees is a manager's stock in trade. It is something that cannot be avoided, but if approached with fear and trepidation, will likely result in a decision that is not in the best interest of the people we serve, i.e. the public. There are numerous federal and state laws that prohibit decision making based upon identifiable factors. In some cases, I think, the existence of these laws has frozen managers into inaction. A general understanding of the goal of these laws might help free up decision making. The Louisiana Supreme Court's discussion of the equal protection guarantee of our State Constitution should help in achieving this general understanding. The equal protection guarantee of the State Constitution is at Article I, Section 3 which provides:

"No person shall be denied the equal protection of the laws. No law shall discriminate against the person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery or involuntary servitude are prohibited, except in the latter case as punishment for crime."

The Louisiana Supreme Court in Sibley vs. Board of Supervisors of Louisiana State University, 477 So.2d 1094, 1107 (La. 1985) interpreted this equal protection guarantee to be that no law whatsoever could classify individuals based upon "race or religious beliefs", and was to be "repudiated completely", that where a statute classified persons based upon the list in the third sentence above its enforcement was to be prohibited unless the classification had a "reasonable basis", and, lastly, classifying on any other basis than those not listed was to be rejected if it did not "suitably further any other appropriate state interest."

That constitutional provision applies to laws passed by the legislative branch, but gives very good general guidance in making personnel decisions within the executive branch. Laws prohibit discrimination based upon the factors identified in that constitutional provision, but discrimination under those laws will not be found to exist if the decision under attack has a "reasonable basis" that will "suitably further any other appropriate state interest". That is, where a manager is faced with making a personnel decision among or between people who are of a different race or religious belief, age, sex, cultural background, physical condition, or political view the decision made will be upheld if it is made not for any of those reasons, but for a reason that furthers an appropriate state interest, i.e. a business reason. The manager must ask himself the question of what goal is sought to be achieved in making the decision and why the manager believes that choosing a particular person will further that goal. If the manager can look the public in the eye and state with confidence why the decision was made, the manager is going to be all right whether facing an individual legislator at committee, a representative of one of the investigative arms within this state's government, or a judge or jury at court. The manager will be all right if the manager has reflected on the decision and can articulate the reason for it. It is a manager's responsibility to make these decisions. Drawing distinctions between and among people is a manager's stock in trade.

I wish you all the best of this holiday season.

Sincerely,

Robert R. Boland, Jr.

General Counsel