There are many stories of former employees suing their employers, claiming they were fired after failing a lie detector test at work. And employers are dragged into costly litigation due to these claims. In light of these lawsuits, business owners may be wondering about the legality of administering lie detector tests such as polygraphs at work.
It turns out that under certain circumstances, employee polygraph tests can be legal, but there are limitations on how they can be used.
Lie Detectors in the Workplace
When it comes to private businesses using lie detector tests at work, the Employee Polygraph Protection Act of 1988 (EPPA) protects current, former, and prospective employees from polygraph misuse. The Act applies to private employers who employ at least two employees and have an annual business volume of at least $500,000. Federal, state, and local governments are excluded from the EPPA.
Polygraphs -- which measure "changes in cardiovascular, respiratory and electrodermal patterns" in a subject, according to the Labor Department -- are just one type of lie detector test, and the only one allowed under the EPPA under certain circumstances. Other types of lie detector tests that aren't lawful in the workplace include: voice stress analyzers, psychological stress evaluators, and deceptograph tests.
Under the EPPA, private employers aren't allowed to subject employees to lie detector tests unless it's a polygraph test; and even then, only if an exemption applies. Under the law, it may be OK to administer polygraph tests on:
- Employees who are reasonbly suspected of involvement in a workplace incident that results in economic loss to the employer, and who had access to the property that is under investigation;
- Prospective employees of a business that provides security services; or
- Prospective employees of a pharmaceutical company or a firm that deals with controlled substances, or current epmloyees of such firms who had access to people or property that is now under investigation.
In addition, employers must provide reasonable notice to employees before a polygraph test is being administered pursuant to one of the exemptions.
Notice Required for Polygraphs
If the polygraph test is administered under the economic loss exemption, then the notice must explain the specifics of the economic loss, and why the employer reasonably suspects the employee was involved.
If the polygraph is administered under the security or pharmaceutical business exemptions, then the notice must include an explanation of an employee's rights (including the right to consult with a lawyer before each phase of the test), along with a list of prohibited questions and topics.
Truth be told: Using polygraphs and other types of lie detector tests at work can potentially lead to legal problems, as the Florida lawsuit shows. Employers considering such tests would be wise to consult an experienced employment attorney first.
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