This is аn appeal from the judgment of the McCracken Circuit Court, affirming the Kentucky Unemployment Insurance Commission's denial of unemployment benefits to appellant.
Appellant commenced working for appel-lee Minit Mart in 1977. This employment was rather brief, due to her family moving from the area. In 1978 they returned and she was re-employed by Minit Mart on a temporary basis, but later employed on a permanent basis and became the manager of the store. After appellant wаs re-employed, Minit Mart adopted a written policy which required its employees to submit to polygraph examination upon request. On April 16, 1981, the appellаnt signed Minit Mart’s “Indoctrination Sheet for New Employees”. The relevant sections of that ’document read as follows:
[[Image here]]
9. Explanation given that Minit Mart Foods Inc., gives pоlygraph tests in certain loss situations.
[[Image here]]
I, Gloria Douthitt /signed/, have read the above and have been instructed on same.
Gloria Douthitt /signed/
Signature of Training Manager
Afterwards, a shortage was discovered. Appellant and other employees submitted to polygraphic examination and apparently all were exonerated.
In August 1982, another periodic inventоry was taken of the store managed by appellant. This inventory revealed a shortage of approximately $1200. Management immediately made arrangеments to have appellant and other employees submit to polygraphic testing. Apparently the inventory was completed in record time. Appellant asked that the store be re-inventoried to see if an error had been committed. Evidence revealed that other re-inventories had cleared up apparent shortages. The management refused to have the recount. Appellant then asked that the inventory crew be examined, as well as she and the other employees. Management refused this request. On August 23rd appellant refused to submit to the test, and she was then summarily discharged. She filed an *474 applicatiоn for unemployment insurance, and appellee, Minit Mart, filed a protest. At the hearing before the Appeals Referee, Minit Mart was represented by сounsel, but appellant was without counsel.
In resisting the application, appellee, Minit Mart, contended that appellant was discharged for misconduct in refusing to submit to the requested test. They contended that such refusal constituted misconduct as defined in K.R.S. 341.370(l)(b), a “... knowing violation of a reasonable and uniformly enforced rule of employer; .... ” Appellant denied any wrongdoing and contends that her refusal was justified because the company failed to have a recоunt or require the inventory crew to submit to polygraph examination along with her and the other employees. She also contended that the requirement of рolygraphic examination was an unreasonable request on the part of the employer; that polygraphic results were unreliable and constituted аn invasion of privacy and violated her right against self-incrimination. The Appeals Referee, Hon. Roger S. Gordon, ruled in appellant’s favor and affirmed the adjusted determination. In so doing, he cited Kentucky Unemployment Insurance Commission Order No. 10933 which held that an employee discharged for failure to comply with an еmployer’s request to submit to polygraphic examination was discharged for reasons other than misconduct connected with work because that employee had the constitutional right to refuse possible self-incrimination. He also observed this was so even though appellant had signed a document agreeing tо such, because she still had the option of exercising her constitutional right to refuse possible self-incrimination.
An appeal was promptly prosecuted to the Commission. On March 21, 1983, the Commission entered an Order reversing the Referee’s decision, with Associate Commissioner Edwin D. Erwin dissenting. In reversing, the Commission adopted the Apрeals Referee’s findings of fact, but erroneously found, “[I]n the present case, at the time of hire, the claimant was aware that the company gave polygraph tests; therefore, she had an obligation to her employer to take it. Her refusal to take it was tantamount to misconduct connected with the work.” The uncontradicted evidence clearly established that appellant had been employed some two or three years prior to the adoptiоn of the policy on April 16,1981.
The appeal taken from this ruling was affirmed by the McCracken Circuit Court.
Appellee argues that the Commission should be affirmed because its findings were supported by substantive evidence, and that the applicable law had been correctly applied. We disagree and reverse.
This is a сase of first impression in this state. The parties have not presented and the Court has not found any appellate decision from another state in which an еmployee’s refusal to take a lie detector test has barred unemployment compensation.
See Valley Vendors v. Jamieson,
The appellеes rely on K.R.S. 341.370(6). That section defines misconduct and includes, “... knowing violation of a reasonable and uniformly enforced rule of employer; .... ” This section was added by the General Assembly in 1982, and became effective some fifty days before appellant was terminated. This statute defines “misconduct” approximately the same way as it is defined by
Boynton Cab Company v. Neubeck,
Appellees argue that submission to рolygraph examination was a condition for the appellant’s employment, and that her breach of this condition constituted misconduct. ‘
The Commission found that appellant was aware of this policy at the time she was hired. We find no substantial evidence to support this finding. However, assuming that there was substantial evi *475 denсe to support this finding, for a claimant to be denied unemployment insurance benefits for violation of an employer’s rule, the rule must be reasonable and unifоrmly enforced. The statutory phrase uses the word “reasonable.” It is not the practice of a particular employer and employee that determines misconduct. We are to examine the facts of each ease in light of the reasonable employment relationship.
An employer’s requirement thаt employees submit to polygraph examination is an unreasonable rule. Polygraph examinations are unreliable.
Conley v. Commonwealth,
Ky.,
Had the appellant taken the test and the results indicated that she was responsible for the shortages, and had she been discharged for that reason, unemployment compensation benefits would have had to be grantеd. The Unemployment Insurance Commission must rely on evidence that complies with the rules of Evidence.
Piper v. The Singer Company, Inc.,
Ky.App.,
We hold thаt it is unreasonable for an employer to require its employees to submit to such an unreliable test for purposes of unemployment compensation bеnefits. Whether an employee would have a claim for relief because he was terminated for refusal to submit to a polygraph examination is not addrеssed by this opinion.
For the above reasons, the judgment of the McCracken Circuit Court is reversed, with directions to remand the case to the Kentucky Unemployment Insurance Commission for an award of unemployment benefits to appellant.
All concur.