(b) For the exemption to apply, the condition of an ``ongoing
investigation'' must be met. As used in section 7(d) of the Act, the
ongoing investigation must be of a specific incident or activity. Thus,
for example, an employer may not request that an employee or employees
submit to a polygraph test in an effort to determine whether or not any
thefts have occurred. Such random testing by an employer is precluded by
the Act. Further, because the exemption is limited to a specific
incident or activity, an employer is precluded from using the exemption
in situations where the so-called ``ongoing investigation'' is
continuous. For example, the fact that items in inventory are frequently
missing from a warehouse would not be a sufficient basis, standing
alone, for administering a polygraph test. Even if the employer can
establish that unusually high amounts of inventory are missing from the
warehouse in a given month, this, in and of itself, would not be a
sufficient basis to meet the specific incident requirement. On the other
hand, polygraph testing in response to inventory shortages would be
permitted where additional evidence is obtained through subsequent
investigation of specific items missing through intentional wrongdoing,
and a reasonable suspicion that the employee to be polygraphed was
involved in the incident under investigation. Administering a polygraph
test in circumstances where the missing inventory is merely unspecified,
statistical shortages, without identification of a specific incident or
activity that produced the inventory shortages and a ``reasonable
suspicion that the employee was involved,'' would amount to little more
than a fishing expedition and is prohibited by the Act.
(c)(1)(i) The terms economic loss or injury to the employer's
business include both direct and indirect economic loss or injury.
