B. Constitutionality
N.J.S.A. 2A:170-90.1 (repealed; now this section) is
constitutional in that it does not deprive defendant of
property without due process of law. Nothing in the
enactment infringes upon federal due process and since
the Legislature could reasonably exercise the State’s
police power and conclude that on balance, the public
welfare would be furthered by prohibiting the employer
from using the lie detector test as a condition of
employment or continued employment, the enactment
satisfies State due process as well. State v. Community
Distributors, Inc., 64 N.J. 479 (1974).
C. Exemptions
The statute contains the only allowable exclusions or
exemptions, and the court had no power to create
additional ones, See Engel v. Township of Woodbridge, 124
N.J. Super. 307 (App. Div. 1973) (employers of police
officers not exempted).
D. Preemption
The federal Employee Polygraph Protection Act
(EPPA) preempted New Jersey antipolygraph statute to
the extent that the antipolygraph statute prohibited the
National Security Agency (NSA) from requiring
employees of NSA contractors to submit to polygraph
examination in order to obtain security clearance.
Employee Polygraph Protection Act of 1988, § § 7, 10,
29 U.S.C.A. § § 2006, 2009; Stehney v. Perry, 101 F.3d
925 (3d Cir. 1996).
E. Application and Construction
The New Jersey statute was intended to apply to an
established employment relationship as well as to the
initial hiring process. State v. Berky Photo Inc., 150 N.J.
Super. 56, 61 (App. Div. 1977). See State v. Community
Distributors, Inc., 64 N.J. 479 (1974) (polygraph tests
unlawfully used as a screening device in employer’s hiring
procedures). See also State v. Berky, Photo Inc., supra, and
Engel v. Township of Woodbridge, 124 N.J. Super, 307
(App. Div. 1973) (respective employers unlawfully asked
certain employees to submit to a lie detector test as an aid
in investigating thefts).
There is no statutory requirement that a polygraph
test actually be administered before a violation occurs.
The essence of the offense is the influence, request or
requirement flowing from the employer or its agents.
Clearly, the Legislature meant to prevent direct or
indirect psychological pressures to submit to testing, not
simply to punish administration of polygraph tests
actually conducted. The employee does not have to
succumb before the statute is violated. State v. Vornado,
Inc., 155 N.J. Super. 354, 357 (App. Div. 1978).Except for the exemption incorporated in the statute,
in determining whether an employer requested his
employees to take the lie detector test, it makes no
difference that the police initiated or recommended the
procedure. State v. Berky Photo Inc., 150 N.J. Super. at 59.The fact that employees signed consent waivers
stating that they were voluntarily taking the lie detector
tests was of no relevance in determining whether the
statute was violated in view of the psychological
compulsion inherent in the employment relationship.
State v. Community Distributors, Inc.; State v. Berky Photo
Inc.