132.3 Definition of “test results”

[NOTE: The provisions of the Wisconsin Fair Employment Act relating to unfair honesty testing were substantially amended in 1991.]

The fact that an employee was never informed that his answers to pre-test questions could serve as an independent basis for the employer to make an employment decision did not render those pre-test admissions any less voluntary. The Complainant had no legitimate right to expect the employer not to be concerned or to act upon his pre-test admissions of having engaged in unlawful conduct. Sajdowitz v. Cedarburg Police Dep’t (LIRC, 10/15/87).

Admissions made by an employee prior to or during a polygraph test do not constitute a “result of a permitted test” within the meaning of the statutory provisions making it illegal to discharge an employee based on the “results of a permitted test.” The “results of a polygraph test” are the polygrapher’s opinion concerning truth or deception and the recordings of the polygraph machine, and those results exclude statements made to the polygrapher in pre-test or post-test interviews. Thus, it was not illegal to terminate an employee, who, in an interview prior to the administration of a polygraph test, made an admission of petty thefts from the employer. Weston v. Bricker Sys. (LIRC, 12/20/85), aff’d (Milwaukee Co. Cir. Ct., 07/22/87).

When the Complainant, in a pre-test interview, admitted that she had stolen $20 from the Respondent on a previous occasion, and when the Respondent discharged the Complainant because of that admission, it did not violate the Act’s prohibition on taking disciplinary action against an employee based on the results of a permitted test. Oral disclosures made in connection with the polygraph test are not “results of a test.” Schierl, Inc. v. LIRC (Portage Co. Cir. Ct., 09/17/85).