Legal officials say Broncos' use of lie-detector test was 'out of bounds' - The Orange Mane

dragondawg · 05-30-2007, 10:44 PM

By James Paton, Rocky Mountain News

Denver attorney Colin Barnacle, a fervent Denver Broncos fan and season ticket holder, isn’t one to challenge Mike Shanahan. But when the coach of the beloved Broncos subjected one of his players to a lie-detector test, Barnacle threw the flag.

If clients call seeking advice on whether that’s a legal move, Barnacle’s reply is usually no. A federal law bars employers from using the exam in most cases.

The Bronco on the hot seat is David Kircus. The receiver said he acted in self-defense in an incident that led to second-degree assault charges against him.

Shanahan, instead of simply standing on the sidelines, came up with the idea to grill Kircus with a lie-detector to determine whether he was being honest.

The 27-year-old athlete, reportedly eager to sit down and face the interrogation, passed.

"If he flunked the test, he would not be with us," Shanahan was quoted as saying.

That was a bad call, said Barnacle, who works in the 17th Street office of law firm Jackson Lewis.

"Our concern with a news story like this, with a highly visible figure in Denver and a highly respected organization like the Broncos, is that there was no reference whatsoever to the law," said Barnacle, who sent a letter to news outlets after hearing the Kircus story on the radio. "I can see an HR manager down the street saying, ‘Hey, the Broncos did it, why can’t we?"

Richard Alan Winkel, another lawyer in Denver, said companies must be "very cautious" in telling workers "they need to take a polygraph to retain a job."

Other legal observers expressed stronger opinions.

Barnacle said "first and foremost, we are Broncos fans," adding he appreciates the team’s quest for the truth. But he said he believes the club strayed from the legal playbook.

Lawyer David Lichtenstein offered his assessment: "No pun intended, but I think they were out of bounds."

That’s because the law says the test is typically off limits.

There are scenarios in which it is permitted. An employer can sit a staffer down for an exam amid an investigation into workplace theft, to cite one exemption. Prospective workers in the security or drug sectors also can be asked to take a lie-detector.

However the "Employee Polygraph Protection Act" says an employer cannot "require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test" or "use, accept, refer to, or inquire about the results of" any test, according to the U.S. Department of Labor’s Web site.

Employers also are prevented from disciplining or firing someone on the basis of the results.

Shanahan’s use of a lie-detector isn’t an egregious offense — if it is one at all — but it could lead employers in Broncos country to mistakenly think they can do the same, lawyers said.

Why so tough on companies seeking to use polygraphs? The bottom line is results of lie-detector tests are "not considered sufficiently reliable to be admissable as evidence" in court, said attorney Barry Roseman.

"That’s a big reason Congress passed the law," he said.

http://www.rockymountainnews.com/drm...562737,00.html

Garcia Bronco · 05-30-2007, 10:50 PM

Kircus could always look for another job. Nor does he have a right to a job.

bronco610 · 05-30-2007, 10:55 PM

Once again proving we have become too litigious of a society!

Billy Clyde Puckett · 05-30-2007, 10:55 PM

Lie Detector screenings used to be common in some industries, but they got out of hand and many times were administered by unqualified personnel, thus the "Employee Polygraph Protection Act." I think that was passed in the mid 70's if memory serves

yerner · 05-30-2007, 10:57 PM

I don't know. Who does Shannahan think he is? The whole thing is weird.

WABronco · 05-30-2007, 10:59 PM

Out of bounds? Well, yea.

Weird? Well, yessss.

DarkHorse30 · 05-30-2007, 11:03 PM

What if Barnacle's first name was "Spongebob"? That would be funny.

Spider · 05-30-2007, 11:06 PM

if the test was presented as a ultimatum then hell yes........ but if Kirkus and the Broncos agreed on the polygraph screener , then case solved .....

dragondawg · 05-30-2007, 11:08 PM

maybe subway would hire him back

Killericon · 05-30-2007, 11:15 PM

If Shanahan said "Take it or you're cut." then it's out of line.

If he said "We'd like it if you'd take a lie detector test since we have some concerns about what happened", then it's fine.

At least, in my opinion.

Bronco Bob · 05-30-2007, 11:24 PM

Quote:

Originally Posted by killericon

If Shanahan said "Take it or you're cut." then it's out of line.

If he said "We'd like it if you'd take a lie detector test since we have some concerns about what happened", then it's fine.

At least, in my opinion.

I don't know where Barnacle or these other guys are getting their information
from, but from what I have read Kircus claims it was his own idea to take the
lie detector test.

[ Broncos receiver David Kircus says he's certain he'll be cleared of an assault charge stemming from a fight that landed him in jail and sent a 26-year-old man to the hospital.

"Well, sure I'm confident. ... That's why I wanted to take that lie detector test, to show how confident I was that I wasn't in the wrong," Kircus said after practice Wednesday in his first public comments since his arrest on May 21.

Coach Mike Shanahan, who had pledged to release Kircus if it was determined he was at fault in the fight, said Tuesday that Kircus would remain on the team after passing a polygraph administered by an FBI expert last week.

Kircus said he told Shanahan he didn't throw the first punch and was acting in self-defense. He volunteered to take a lie detector test to show him he was telling the truth.

"I told him I would do whatever it takes to get the team and the coaches to believe me because it was the truth and I had nothing to hide," Kircus said. "... I said, 'You know what, if I fail this test then you can kick me off.' That's how confident I was.

"I didn't know what to expect from the test, but I knew I was going to tell the truth, so I was 100 percent confident that I was going to pass it." ]

Garcia Bronco · 05-30-2007, 11:42 PM

Quote:

Originally Posted by §Pide®

if the test was presented as a ultimatum then hell yes........ but if Kirkus and the Broncos agreed on the polygraph screener , then case solved .....

We can't look at this in a bubble. He was charged with a serious crime and the ultimatum was already on the table in the sense that...if he's guilty he's gone. It's in his best interest to prove his innocence. As a practice though, lie detectors on employees for common things would be worthless. In this case though it's okay..and he still has to try and make the team on top of the stigma.

Billy Clyde Puckett · 05-31-2007, 12:04 AM

I believe the law can be superceded by employment contracts or collective bargaining agreements. Some professions and employers are exempt, but I doubt there is a specific exemption for the NFL. Pehaps some of our attorneys could explain.

shakenbake · 05-31-2007, 12:30 AM

I thought he offered to take the exam.

Popps · 05-31-2007, 12:30 AM

This was just phenomenally stupid on Shanahan's part. Just idiotic. That's if he even did it.

You know what, Mike.. just be a man and say you support him or you don't. Take a stand. Don't waffle around, then throw out some bull**** about a lie detector test that none of us can actually verify.

This story is on the front page of Yahoo. What an embarrassment. An idiot back-up WR that can't stay out of trouble, and a coach that wants to play detective. Good lord.

shakenbake · 05-31-2007, 12:38 AM

Quote:

Originally Posted by Popps

This was just phenomenally stupid on Shanahan's part. Just idiotic. That's if he even did it.

You know what, Mike.. just be a man and say you support him or you don't. Take a stand. Don't waffle around, then throw out some bull**** about a lie detector test that none of us can actually verify.

This story is on the front page of Yahoo. What an embarrassment. An idiot back-up WR that can't stay out of trouble, and a coach that wants to play detective. Good lord.

wow, and I thought my girlfriend was melodramatic. Ever though about joining a theater group?

RhymesayersDU · 05-31-2007, 12:39 AM

Quote:

Originally Posted by Popps

This story is on the front page of Yahoo. What an embarrassment. An idiot back-up WR that can't stay out of trouble, and a coach that wants to play detective. Good lord.

Yeah, somehow this made the front page of Yahoo, I was pretty surprised. I thought Lindsay Lohan just relapsed?

Popps · 05-31-2007, 12:46 AM

Quote:

Originally Posted by shakenbake

wow, and I thought my girlfriend was melodramatic. Ever though about joining a theater group?

Sorry... too much thought, probably. Here, let me get on board with you...

DUDE... SHANAHAN SO KICK ASS. DAVID KIRCUS IS LIKE AWESOME AND TOALLY INNOCENT. BALLPLAYER NO DO NOTHING BAD.

Little more what you're looking for?

Popps · 05-31-2007, 12:48 AM

Quote:

Originally Posted by RhymesayersDU

Yeah, somehow this made the front page of Yahoo, I was pretty surprised. I thought Lindsay Lohan just relapsed?

Yea, pretty silly. Shanahan did the right thing. He washed his hands of it until it played out legally. Then, turned around and pulled some bush-league crap like this.

Out of character for him, but nobody's perfect.

Elway777 · 05-31-2007, 12:59 AM

The good thing is that Kircus passed the test and maybe he was only acting in self defence. I really like Kircus and hope he makes the Broncos next year.

freak6 · 05-31-2007, 01:06 AM

Shanahan should have kept this under wraps.

Oh well. It's the offseason, and he is giddy about the prospects of the future.

Coach Kevlar!

shakenbake · 05-31-2007, 01:22 AM

Quote:

Originally Posted by Popps

Sorry... too much thought, probably. Here, let me get on board with you...

DUDE... SHANAHAN SO KICK ASS. DAVID KIRCUS IS LIKE AWESOME AND TOALLY INNOCENT. BALLPLAYER NO DO NOTHING BAD.

Little more what you're looking for?

No not really what I was looking for. But to be "embarrassed" because Shanahan gave a guy a lie detector test is a little strange. I guess I just don't let the team I cheer for "embarrass" me personally.

BroncoInferno · 05-31-2007, 01:48 AM

I don't mind the methods...after all, unlike Popps, some people actually believe in letting due process take its course before judging someone. That said, Kircus is irrelevant to this team and always has been. Just release the guy and be done with with it. He's of no use and not worth the distraction.

maven · 05-31-2007, 02:08 AM

Quote:

Originally Posted by BroncoInferno

I don't mind the methods...after all, unlike Popps, some people actually believe in letting due process take its course before judging someone. That said, Kircus is irrelevant to this team and always has been. Just release the guy and be done with with it. He's of no use and not worth the distraction.

You'd think so. Isn't that the point of drafting Hixon? Or is he just another lump of coal amongst the many busts drafted at the WR position.

footstepsfrom#27 · 05-31-2007, 02:09 AM

Quote:

Originally Posted by Big Guy

I believe the law can be superceded by employment contracts or collective bargaining agreements. Some professions and employers are exempt, but I doubt there is a specific exemption for the NFL. Pehaps some of our attorneys could explain.

Well since I'm not an attorney and don't want to get charged with "practicing law without a license" (sarcasm) so I'll include the obligatory LEGAL DISCLAIMER that if you're so incredibly stupid that you think you can justifiably rely on what some anonomous poster on an internet football board says as constituting "legal advice" then you deserve whatever happens to you next.

That said...I believe the attorney is probably wrong.

I say "probably" wrong because the statutory language does not seem to support what he's saying, and Cornell Law School's search of Supreme Court decisions returns no hits for "Employee Polygraph Protection Act" (http://neuro.law.cornell.edu/supct/search/search.html). However, it's possible that another federal court ruling, prior case law or an AG's ruling may have already addressed this issue, or for that matter, that the CLS search engine isn't working because it's a piece of crap.

Get the picture?

Here is the actual law, so you can read it for yourself in US Code, Title 29, Chapter 22: http://www.law.cornell.edu/uscode/29..._29_10_22.html Click on Section 2006-Exemptions (link here: http://www.law.cornell.edu/uscode/29...6----000-.html) and skp down to this:

(d) Limited exemptions for ongoing investigations

Subject to sections 2007 and 2009 of this title, this chapter shall not prohibit an employer from requesting an employee to submit to a polygraph test if—
(1) the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage;

The rest of section 2006 as well as 2007 and 2009 address various exceptions to exemptions, none of which look like they change anything so long as the Broncos complied with these additional provisions, the primary one being additional evidence besides the polygraph as the basis for a decision to terminate employment. I'd be pretty shocked if they didn't have their own lawyers dot all the i's and cross all the t's here, and you can probably expect a statement to that effect from Dove Valley sometime today.

So anyway...in plain English, the law appears to allow the Broncos to use the polygraph because it provides for employer exemptions in cases where there is 1) an ongoing investigation, and 2) this is a situation involving some kind of economic loss OR "injury to the employer's business". That clearly seems to be exactly the case here.

Note that the penalty involved if they somehow managed to screw this up is that the employee basically gets his job back...however Goodell could obviously still take his own action...and probably will anyway.

I don't think this is any big deal.

05-30-2007, 10:44 PM	#1
dragondawg All Pro Join Date: Apr 2006 Posts: 2,009	Legal officials say Broncos' use of lie-detector test was 'out of bounds' By James Paton, Rocky Mountain News Denver attorney Colin Barnacle, a fervent Denver Broncos fan and season ticket holder, isn’t one to challenge Mike Shanahan. But when the coach of the beloved Broncos subjected one of his players to a lie-detector test, Barnacle threw the flag. If clients call seeking advice on whether that’s a legal move, Barnacle’s reply is usually no. A federal law bars employers from using the exam in most cases. The Bronco on the hot seat is David Kircus. The receiver said he acted in self-defense in an incident that led to second-degree assault charges against him. Shanahan, instead of simply standing on the sidelines, came up with the idea to grill Kircus with a lie-detector to determine whether he was being honest. The 27-year-old athlete, reportedly eager to sit down and face the interrogation, passed. "If he flunked the test, he would not be with us," Shanahan was quoted as saying. That was a bad call, said Barnacle, who works in the 17th Street office of law firm Jackson Lewis. "Our concern with a news story like this, with a highly visible figure in Denver and a highly respected organization like the Broncos, is that there was no reference whatsoever to the law," said Barnacle, who sent a letter to news outlets after hearing the Kircus story on the radio. "I can see an HR manager down the street saying, ‘Hey, the Broncos did it, why can’t we?" Richard Alan Winkel, another lawyer in Denver, said companies must be "very cautious" in telling workers "they need to take a polygraph to retain a job." Other legal observers expressed stronger opinions. Barnacle said "first and foremost, we are Broncos fans," adding he appreciates the team’s quest for the truth. But he said he believes the club strayed from the legal playbook. Lawyer David Lichtenstein offered his assessment: "No pun intended, but I think they were out of bounds." That’s because the law says the test is typically off limits. There are scenarios in which it is permitted. An employer can sit a staffer down for an exam amid an investigation into workplace theft, to cite one exemption. Prospective workers in the security or drug sectors also can be asked to take a lie-detector. However the "Employee Polygraph Protection Act" says an employer cannot "require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test" or "use, accept, refer to, or inquire about the results of" any test, according to the U.S. Department of Labor’s Web site. Employers also are prevented from disciplining or firing someone on the basis of the results. Shanahan’s use of a lie-detector isn’t an egregious offense — if it is one at all — but it could lead employers in Broncos country to mistakenly think they can do the same, lawyers said. Why so tough on companies seeking to use polygraphs? The bottom line is results of lie-detector tests are "not considered sufficiently reliable to be admissable as evidence" in court, said attorney Barry Roseman. "That’s a big reason Congress passed the law," he said. http://www.rockymountainnews.com/drm...562737,00.html

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05-30-2007, 10:50 PM	#2
Garcia Bronco Hokie since 1993 Join Date: Apr 2001 Location: Denver, CO Posts: 46,001 Adopt-a-Bronco: Tom Jackson	Kircus could always look for another job. Nor does he have a right to a job.

05-30-2007, 10:55 PM	#3
bronco610 OLD FART Join Date: Nov 2005 Location: Keller, TX Posts: 2,025 Adopt-a-Bronco: Woodyard	Once again proving we have become too litigious of a society!

05-30-2007, 10:55 PM	#4
Billy Clyde Puckett Billy=Semi Tough Big Guy Looking down on KC, SD and Oakland Join Date: Jan 2004 Location: between 5,000 and 10,000 feet elevation Posts: 12,665 Adopt-a-Bronco: John Elway	Lie Detector screenings used to be common in some industries, but they got out of hand and many times were administered by unqualified personnel, thus the "Employee Polygraph Protection Act." I think that was passed in the mid 70's if memory serves

05-30-2007, 10:57 PM	#5
yerner Ring of Famer Join Date: Jun 2005 Location: Charlottesville VA Posts: 3,314	I don't know. Who does Shannahan think he is? The whole thing is weird.

05-30-2007, 10:59 PM	#6
WABronco WE SUCK AGAIN All dat force Join Date: Apr 2005 Location: Denver Posts: 4,976	Out of bounds? Well, yea. Weird? Well, yessss.

05-30-2007, 11:03 PM	#7
DarkHorse30 Smith Rules Join Date: Mar 2005 Posts: 2,094 Adopt-a-Bronco: wolf pot roast	What if Barnacle's first name was "Spongebob"? That would be funny.

05-30-2007, 11:06 PM	#8
Spider Mr Diplomacy I survived Tebow Mania at the Mane Join Date: May 2001 Location: Elway was just an arm =MacGruder Posts: 84,438 Adopt-a-Bronco: Von Miller	if the test was presented as a ultimatum then hell yes........ but if Kirkus and the Broncos agreed on the polygraph screener , then case solved .....

05-30-2007, 11:08 PM	#9
dragondawg All Pro Join Date: Apr 2006 Posts: 2,009	maybe subway would hire him back

05-30-2007, 11:15 PM	#10
Killericon YES A DT!!!!!! Join Date: Dec 2005 Location: From Calgary, in Halifax for School Posts: 7,730 Adopt-a-Bronco: watermock	If Shanahan said "Take it or you're cut." then it's out of line. If he said "We'd like it if you'd take a lie detector test since we have some concerns about what happened", then it's fine. At least, in my opinion.

05-31-2007, 12:04 AM	#13
Billy Clyde Puckett Billy=Semi Tough Big Guy Looking down on KC, SD and Oakland Join Date: Jan 2004 Location: between 5,000 and 10,000 feet elevation Posts: 12,665 Adopt-a-Bronco: John Elway	I believe the law can be superceded by employment contracts or collective bargaining agreements. Some professions and employers are exempt, but I doubt there is a specific exemption for the NFL. Pehaps some of our attorneys could explain.

05-31-2007, 12:30 AM	#14
shakenbake Texas Homer Join Date: Jun 2003 Location: Shanghai, China Posts: 3,136	I thought he offered to take the exam.

05-31-2007, 12:30 AM	#15
Popps TEAM FIRST. Join Date: Dec 2002 Location: Los Angeles, CA Posts: 29,792	This was just phenomenally stupid on Shanahan's part. Just idiotic. That's if he even did it. You know what, Mike.. just be a man and say you support him or you don't. Take a stand. Don't waffle around, then throw out some bull**** about a lie detector test that none of us can actually verify. This story is on the front page of Yahoo. What an embarrassment. An idiot back-up WR that can't stay out of trouble, and a coach that wants to play detective. Good lord.

05-31-2007, 12:59 AM	#20
Elway777 Ring of Famer Join Date: Jan 2003 Posts: 1,886	The good thing is that Kircus passed the test and maybe he was only acting in self defence. I really like Kircus and hope he makes the Broncos next year.

05-31-2007, 01:06 AM	#21
freak6 3,631 - WAKE UP!!!! Impeach President Cheney and Puppet Join Date: Aug 2004 Location: San Diego Posts: 4,651 Adopt-a-Bronco: MJK	Shanahan should have kept this under wraps. Oh well. It's the offseason, and he is giddy about the prospects of the future. Coach Kevlar!

05-31-2007, 01:48 AM	#23
BroncoInferno Ring of Famer Join Date: Dec 2002 Location: South Carolina Posts: 13,031	I don't mind the methods...after all, unlike Popps, some people actually believe in letting due process take its course before judging someone. That said, Kircus is irrelevant to this team and always has been. Just release the guy and be done with with it. He's of no use and not worth the distraction.