Lie Detectors

Lie detector tests in the workplace are partially regulated by the Employee Polygraph Protection Act of 1988, 29 U.S.C. 2001(4), and the rule implementing the Act, Application of the Employee Polygraph Protection Act of 1988, at 53 Fed. Reg. 41. The act states that an employer cannot:

1. Require, request, suggest, or cause an employee or prospective employee to take any lie detector test
2. Use, accept, refer to, or inquire about the results of any lie detector test
3. Discharge, discipline, discriminate against, or deny employment or promotion to employees. . .

(1) who exercise their rights under the Act,

(2) who refuse to take a polygraph test, or

(3) who fail a polygraph test.

Of course, there are exceptions. The following three classes of employees can be forced to take lie detector tests, but they cannot be terminated as a result of the test:

1. Government employees working on national defense and security matters
2. Private employees of armored car or security companies;
3. Employees who manufacture, distribute or dispense controlled substances.

The biggest exception of all allows private employers to give polygraphs to employees if all of the following conditions are met:

1. The test is part of an ongoing investigation involving economic loss (such as theft, embezzlement, misappropriation, industrial espionage or sabotage). The investigation has to be caused by a specific incident, and cannot be a random spot check
2. The loss being investigated comes from intentional wrongdoing,
3. The employee had access to the lost property,
4. The employer has a reasonable suspicion that the employee was involved in the loss, and
5. The employer gives the employee a disclosure statement at least 48 hours before the test.

The disclosure statement must contain all of the following:

a. A precise description of the activity under investigation and of the lost property.

b. The basis for testing the specific employee

c. The signature of a person legally authorized to bind the employer who has been working there at least 3 years

d. A statement that the employee had access to the lost property.

e. A description of the employer's reasonable suspicion that the employee was involved in the activity.

f. Disclosure of any two-way mirrors, cameras or recording equipment.

g. A statement that the employee cannot be required to take the test as a condition of employment.

h. A statement that information from the test might be used against the employee later.

The polygraph operator must have a state license and $50,000 worth of liability coverage. His opinions after the exam must be based only on the exam, and he is not permitted to give advice on whether to fire the employee.

The employer and the polygraph operator are not allowed to disclose the test results without a court order or the employee's written permission.

Employers must conspicuously display a Labor Department poster giving information about this law.

The employee has some rights during the test:

1. Except for employees in national defense or security jobs, the employee can end the test at any time.
2. The employer cannot ask degrading or needlessly intrusive questions.
3. The employer cannot ask about sexual behavior.
4. The employer cannot ask questions about the employee's religious, racial, political, or union- related beliefs.
5. If the employee has a doctor's note stating that some medical condition might cause abnormal responses to the test, he doesn't have to take the test.
6. An employee can be fired as a result of the test only if the employer shows "additional evidence" besides the lie detector test.
   

Copyright 1996 David Trieloff, Esq.

Mr. Trieloff passed away on April 16th, 1998 and is sadly missed by the staff of the Business Know-How where he was a member of the volunteer staff.