Employers may be tempted from time to time to ask or even require employees to submit to polygraph tests, often called lie detector tests. Are such tests legal? This article will explore the legal ramifications of polygraph tests in the workplace.
Federal law
The Employee Polygraph
Protection Act of 1988 (EPPA) generally prevents employers from using lie
detector tests, either for pre-employment screening or during the course of
employment. Employers generally may not
require or request an employee or job applicant to take a lie detector test, or
discharge, discipline, or discriminate against an employee or job applicant for
refusing to take such a test. Employers
are required to display the EPPA poster in the workplace for their
employees. There are, however, certain
exemptions that will be discussed below.
Ongoing investigation
exemption
According to federal law, an
employer is not prohibited from requesting an employee to submit to a polygraph
test if: 1) the test is administered in connection with an ongoing
investigation involving economic loss or injury to the employer’s business,
such as theft, embezzlement, misappropriation, etc.; 2) the employee had access
to the property that is the subject to the investigation; 3) the employer has a
reasonable suspicion that the employee was involved in the incident or activity
under investigation; and 4) the employer executes a statement, provided to the
examinee before the test that a) sets for the with particularity the specific
incident or activity being investigated and the basis for testing particular
employees, b) is signed by a person, other than the polygraph examiner,
authorized to legally bind the employer, c) is retained by the employer for at
least three years, and d) contains an identification of this specific economic
loss, etc.
Security services
exemption
Another federal exemption is
the exemption for security services.
Federal law does not prohibit the use of polygraph tests on perspective
employees by any private employer whose primary business purpose consists of
providing armored car personnel, personnel engaged in the design, installation,
and maintenance of security alarm systems, or other uniformed or plained
clothes security personnel.
Other federal
exemptions
In addition to the above
exemptions, there are other exemptions for national defense, government
security, FBI contractors, etc.
California law
California Labor Code section
432.2 states that “no employer shall demand or require any applicant for
employment or perspective employment or any employee to submit to or take a
polygraph, lie detector or similar test or examination as a condition of
employment or continued employment.” In
addition, Labor Code section 432.2 states that “no employer shall request any
person to take such a test, or administer such a test, without first advising
the person in writing at the time the test is to be administered of the rights
guaranteed by this section.”
Government employee
exemption
However, there is an
exemption in Labor Code section 432.2 which states that the prohibition of this
section does not apply to the Federal Government or any agency thereof or the
State Government or any agency or any local subdivision thereof, including, but
not limited to, counties, cities, districts, etc. Employers need to be sure that these
perspective employees would be hired by the actual government entity and not simply
contracting with the city/county, or employed by someone else and simply doing
work for the city/county.
Conclusion
While there are some
exemptions to the federal and state law prohibitions of polygraph tests in the
workplace, the safest thing to do is avoid them. The accuracy of polygraph tests has been
questioned for years, and the risk employers run in requiring their employees
to submit to such tests will almost always outweigh the benefit.
