The Oldest Law Journal in the United States 1843-2017 philadelphia, MONday, MARCH 19, 2018 VOL 257 • NO. 53

Employment Law Polygraph Protection Act Claim Denied in Recent Case

By Sid Steinberg misrepresentation, intentional interfer- Sid Steinberg is a Special to the Legal ence with contractual relations, and principal and chair of Post & Schell’s employment misappropriation of trade secrets. lthough we often plead or de- and employee relations Jury Returns Mixed Verdict fend various state law claims and labor practice groups. ancillary to our more usual Steinberg’s practice involves After a six-day trial, the jury re- A virtually all aspects employment discrimination actions, turned a verdict in favor of Accurso of employee relations,­ they rarely drive cases and we rarely including­ litigation­ on his breach of contract claim, but have the opportunity to discuss such experience defending employers against employment found that because Accurso had also claims in this column. But the recent discrimination in federal and state courts. He also breached the contract, the defendants post-trial decision in Accurso v. Infra- represents employers­ before federal, state and local were relieved of their obligation to ­administrative agencies, and regularly advises Red Services, No. 13-7509 (E.D. Pa. employers in matters including employee discipline, perform. The jury then awarded dam- Feb. 16, 2018) involves a wide variety labor relations, and the creation or revision of ages to the defendants for Accurso’s of seldom-litigated claims. ­employee handbooks. He can be reached at sstein- breach of contract, as well as finding [email protected]. that Accurso had breached his fiduciary Roofing Business duty to the defendants and had misap- The rather convoluted facts involve claimed that he was fired because Land propriated the defendants’ trade secrets. the employment of Peter Accurso by wanted to divert Accurso’s business to The jury found that the defendants had Infra-Red Services (IRS) and Roofing his significant other. not violate the EPPA. The jury awarded Dynamics Group (RDG), both roofing Accurso brought numerous claims nominal damages to the defendants services companies connected to Brian against the defendants, including vi- on the counterclaims for intentional Land. Accurso was responsible for so- olation of the Employee Polygraph interference­ with contractual rela- liciting business for both companies. Protection Act; breach of contract; tions and fraudulent misrepresentation. In 2008, he was suspected of diverting intentional interference with con- Finally, the jury found that the defen- business from RDG to friends and was tractual relations and violation of dants had violated the Wage Payment directed to take a polygraph test as the Pennsylvania Wage Payment and and Collection Law by failing to pay part of the investigation. Accurso took Collection Law. His EPPA claim re- Accurso commissions earned before his another polygraph in 2010. There was lated to the 2008 polygraph was dis- termination. Both parties filed post-trial a dispute over whether the 2010 poly- missed as time-barred, but the 2010 motions on all adverse findings. graph was mutually agreed upon or if polygraph claim remained in dispute. Accurso was forced to take the test. The defendants filed ­counterclaims Polygraph Protection Act Accurso claimed that he was fired be- against Accurso for breach of contract, Initially, the EPPA states that “it shall cause of the polygraph results. He also breach of fiduciary duty, fraudulent be unlawful for any employer ... directly or indirectly, to require, request, sug- having breached his contractual duty to numerous contractual relationships of gest, or cause any employee or prospec- maintain the confidentiality of the com- the company, including with a business tive employee to take or submit to any pany’s pricing information. Accurso was associate responsible for marketing lie detector test; to use, accept, refer to, found to have given such information (when he undermined the relationship or inquire concerning the results of any about a specific project to a friend (who, by disclosing what the company paid to lie detector test of any employee or pro- it appears, underbid RDG for the busi- someone else for the same work) and spective employee” or to otherwise take ness). One of the arguments put forward with an ongoing customer relationship. an adverse employment action against by the company in the breach of contract an employee on the basis of the results action was that Accurso had affirma- Wage Payment Claim Upheld of any lie detector test. The limited ex- tively deleted all of his emails related to Despite all of the findings regarding ception to the prohibition against using the project in question, thus raising the Accurso’s business misdeeds, the jury a polygraph is where it is used “in con- issue of spoliation. There was specific found that the company had violated nection with an ongoing investigation evidence that Accurso’s email “send” the Wage Payment and Collection Law involving economic loss or injury to box contained threads that could not be by failing to pay commissions on seven the employer’s business, such as theft, found in his “in” box—thus ­leading to projects on which Accurso had worked embezzlement, misappropriation, or an before his termination. The court de- act of unlawful industrial espionage nied the defendants’ post-trial motions or sabotage.” In order to invoke this The case illustrates the on this claim, finding that “the mere exception, the employee must have had fact that certain compensation is not access to the property being investi- potency of the various state payable until a future date is not neces- gated and the employer must have “a law claims under the ap- sarily fatal to a WPCL claim so long reasonable suspicion that the employee as the employee is deemed to have was involved in the incident or activ- propriate circumstances ‘earned’ it during his employment.” ity under investigation.” The employer as well as the need to fol- That is, “the date compensation is pay- must then execute a signed statement, able is not necessarily the same as the provided to the examinee before the low through on commis- date ­compensation is earned. Naturally, test, that “sets forth with particularity an employer and employee can des- the specific incident or activity being sion payments that may be ignate some other point in the trans- investigated and the basis for testing owed even after an em- action at which time a commission particular employees.” is “earned,” but the contract between The issue at trial was whether Land ployee leaves the company. Accurso and the defendants contains­ relied upon the results of either poly- no such clear designation.” graph in terminating Accurso. With While Accurso appears to have re- respect to the 2008 test, there was the question of whether Accurso had peatedly sought to undermine the de- evidence that Accurso confessed to (rather sloppily) deleted the emails in fendants’ business—in what one hopes diverting business shortly after the test, question. The court allowed counsel to is a rare ­circumstance—the case il- such that the company did not rely on argue spoliation to the jury. lustrates the potency of the various the test’s results per se. Further, there The court also found sufficient ev- state law claims under the appropriate was a dispute as to whether Accurso idence to support the jury’s verdict circumstances as well as the need to had even taken the 2010 test, which that, by forwarding company infor- follow through on commission pay- supported the company’s contention mation to his friends in the business ments that may be owed even after an that it made no conclusions about the (who, again, underbid RDG on spe- employee leaves the company. • test’s results. cific, identified projects),A ccurso had breached his common law fiduciary Both Parties Breach duty and that his actions rose to the Reprinted with permission from the March 19, 2018 edition of The Legal Intelligencer © 2018 ALM Contract level of fraudulent misrepresentation. Media Properties, LLC. All rights reserved. Further The company’s breach of contract Additionally, three was sufficient evi- duplication without permission is prohibited. For information, contact 877-257-3382, [email protected] or ­action was based largely on Accurso dence that Accurso had interfered with visit www.almreprints.com. # 201-03-18-05