Polygraphs, often inaccurately referred to as lie detector tests, are occasionally used as pre-employment tools for screening candidates. Polygraphs are most commonly used for employment where there are high value materials, classified information, large amounts of money and for law enforcement positions. Outside a few exceptions, most private employers are prohibited from using polygraphs.
Protection under the law
The Employee Polygraph Protection Act (EPPA) limits the use of polygraphs by private employers and prohibits them from using polygraphs for the purpose of disciplinary action including discharge, or discriminating against an employee or applicant who refuses to take a polygraph.
The moniker “lie detector” test is inaccurate, because polygraphs don’t actually detect lies. The purpose of the polygraph test is to graph physiological reactions of a subject in response to questioning. Those reactions are used as stress indicators, which may be interpreted as attempts to conceal or deceive. This has not always yielded reliable results, and so the value of polygraphs has long been in question.
Since the EPPA prohibits, with few exceptions, the use of polygraphs as a tool for determining employment – either hiring or termination or for discipline of employees — an employee’s job would therefore only be in jeopardy in those exceptional circumstances.
Exceptions to the EPPA are positions involved in security or pharmaceuticals. The EPPA does not cover public, federal, state or local government agencies.
In those exempt instances where polygraphs are permissible, polygraph tests are subject to rigid guidelines including:
- The polygraph must be administered by a licensed and bonded examiner or one who has liability coverage.
- Limited disclosure of test results is mandated by the act.
- Employer must provide 48 hours’ advance notice of the time and date of the test.
- Employer and examiner must maintain record of polygraph results for at least 3 years. Records must include written statements and notices regarding the time, location and purpose of the exam, and notification of employee’s right to counsel.
- Pre-testing questions will be used to establish a baseline for measuring test results, questions for which the answers are already known.
- Employee will be provided in writing all polygraph test questions in advance.
Additional restrictions may also apply based on federal, state or local statutes related to polygraph testing or collective bargaining agreements that establish further restrictions.
Violation of any part of the EPPA may be penalized up to $10,000 in civil damages for each violation. Employees may also be entitled to additional compensation including legal fees, lost wages and benefits, job reinstatement or employment.
Private employers subject to the provisions of the act may only request employees submit to a polygraph where an employee is “reasonably suspected” of a serious workplace violation as provided for by the EPPA. If the employee refuses to take the test, the employer may not discipline or dismiss the employee.
If you are an employee covered by the Employee Polygraph Protection Act and have been requested to take a polygraph test, be sure that the purpose of the test meets the requirements set forth by the EPPA. Do not sign any agreement to submit to the test, especially for reasons stemming from a covered workplace incident, before consulting with counsel per your rights under the act.
There is no risk to your job under the protection of the EPPA for refusing to take a test. The only risk to you is if the results of any test you do submit to are unfavorable to you. For further information about the protection afforded to you under the Employee Polygraph Protection Act and a full list of compliances required of your employer, visit the Department of Labor.