Translators forced to take polygraphs awarded $4M in damages
Former translators who were subjected to polygraph tests by the Drug Enforcement Administration (DEA) were awarded $4 million in damages. This “rare rebuke of the federal government’s reliance on lie-detector tests” showed discrepancies in how the DEA used polygraph data and proved the tests unreliable in the manner they were administered.
The plaintiffs were contract employees for a company that provides translation services to private companies, law enforcement agencies and government agencies. They translated conversations from Spanish to English of court-authorized wiretaps of DEA suspects. The case revolved around their having been terminated after they failed or refused to take polygraphs at the request of the DEA.
Before being hired, the plaintiffs underwent background checks, but polygraphs became mandatory in 2011 in response to a leak of information from a wiretap. This prompted the DEA to request the polygraph of 100 translators, a quarter of whom were terminated for producing ‘failing’ results or for refusing to take the test.
The plaintiffs sued their direct employer Metropolitan Interpreters and Translators (Metropolitan) and the DEA. “Most federal employees and contractors are barred from suing over security clearance matters in court” and “instead to seek recourse directly from the agencies” but in this case the employees were allowed to file suit based on their allegation that the DEA wasn’t permitted to polygraph them as employees of the agency’s contractor, Metropolitan.
A federal judge ruled in October that mandating polygraphs violate a law from 1988 banning most private employers from requiring the tests. This ruling was informed by the inaccuracy of polygraphs tests and the point that it is too invasive. It did make provisions for certain intelligence and law enforcement agencies to polygraph contract workers, but the DEA is not included.
The damages the plaintiffs sought included compensation for lost earnings resulting from the termination, and also future damages related to ongoing financial hardships resulting from the tests and termination. Economic experts utilize earnings history, industry data and education and background to determine back- and front-damages in this type of case. Economic expert Dwight Steward, Ph.D. explains that “The possibility of re-employment makes the calculation of damages in employment termination cases different from damage calculations in other types of cases.”
The DEA settled with the plaintiffs for a total of $500,000 and the jury determined the damages Metropolitan would be required to pay the plaintiffs. The jury awarded $532,000 in economic damages and $3.5 million in non-economic damages.
The jury was tasked with determining if Metropolitan should be required to pay damages instead of the DEA. The jury decided that 40 percent of the non-economic damages ($1.4 million) was caused by the DEA and U.S. Immigrations and Customs Enforcement, and 60 percent ($2.1 million) by Metropolitan.
“As a result of the shared liability, the translators may only be entitled to less than the $4 million.” The shared liability means that the plaintiffs may not be entitled to the full $4 million, and the jury declined to add to the award by levying punitive damages.
This settlement is the first time (at least publically) that a federal agency has settled in a case involving contract workers alleging illegal polygraph tests since the 1988 law was passed.
Case details
Plaintiffs are represented by Eugene G. Iredale, Julia Yoo and Grace S. Jun of Iredale & Yoo APC. Metropolitan is represented by Rebecca L. Torrey, Yoanna S. Binder, Maura F. Kingseed and Barry W. Lee of Manatt Phelps & Phillips LLP. Case names: Melany Duran v. Metropolitan Interpreters and Translators Inc. et al., case number 3:13-cv-01891, Francisco Bates et al. v. Metropolitan Interpreters and Translators Inc. et al., case number 3:12-cv-00460 and Maribel Taylor et al. v. Metropolitan Interpreters and Translators Inc. et al., case number 3:13-cv-01892, in the U.S. District Court for the Southern District of California
An analogous situation to keep your eye on: Uber is considering involving polygraph tests as part ‘putting technology to work’ to help make passengers and drivers safer in coming years. Wired reports that Uber could use lie-detector tests to “fill gaps in available data” in countries where background checks are difficult or impossible
