A. Lie Detector Tests

Prior to December 27, 1988, approximately 26 states did not regulate the use of polygraph tests. Following enactment of the federal Polygraph Protection Act of 1988, however, most of the millions of annual tests previously given have ceased.

The law is designed to protect employees in instances where abuse is most likely to occur (i.e., automatic lie detector tests for job applicants), and affects most companies in the areas of applicant screening, random testing of employees and lie detector use during investigations of suspected wrongdoing. Fines and penalties include back pay, job reinstatement and related damages, attorneys' fees and costs to successful litigants, plus civil penalties up to $10,000 and injunctive relief for actions brought by the U.S. Secretary of Labor within three years from the wrongful act.

In those states that currently have stronger laws prohibiting lie detector (defined as any mechanical or electrical device used to render a diagnostic opinion regarding honesty) tests, the state laws supersede the act. This is because the federal law sets minimum standards for private employers in each state to follow. Idaho law, for example, prohibits any employer from requiring as a condition of employment that an employee take a polygraph test, and violation of this law is a crime. Employers in states which had few restrictions, however, such as Florida, Illinois and New York, are required to follow the federal law.

TIP: If your company has a more restrictive lie detector policy within an applicable collective bargaining agreement, that policy may supersede state or federal law.

Generally, employers are prohibited from directly or indirectly requiring, requesting, suggesting or causing an applicant or employee to take any lie detector test. Tests can be administered in connection with an investigation, but only after reasonable suspicion has been established. Many procedural safeguards must be carefully followed: the individual must have an opportunity to obtain and consult with legal counsel before each phase of the test; be provided at least 48 hours' notice of the time and place of the test; be notified of the evidentiary basis for the test; be advised of the nature and characteristics of the test and instruments involved (i.e., two-way mirrors or recording devices); be provided an opportunity to review all questions to be asked at the examination; and be given a copy of the law, which mentions an employee's rights and remedies and which gives him/her the right to stop the test at any time.

Although the federal law restricts the method under which the tests may be given, it does allow for lie detector use to investigate serious workplace improprieties. However, employees who submit to such a test must be given the results, together with a copy of the questions asked. Additionally, employers are forbidden from admini- stering more than five tests per day, and each test must run no longer than 90 minutes. All persons administering such tests must be bonded with at least $50,000 of coverage, and are forbidden from recommend- ing action regarding test results.

TIP: Since employers must now have a reasonable basis for suspicion of wrongdoing to order the test, companies must be sure that such suspicions are well-founded lest they face liability. In addition, all exam results and action taken based on them must be guarded against careless dissemination to non-essential third parties to avoid charges of defamation. Federal law also forbids companies from allowing non-sus- pects to voluntarily take the test to "clear their own name".

Counsel Comment #70: All companies must be mindful of the restrictions imposed by the Polygraph Protection Act. Lie detector tests can no longer be given as part of a "fishing expedition" to uncover facts. Now, employers must use the test only as part of an ongoing investigation, must be able to demonstrate the suspected employee's involvement in the matter under investigation, and must be careful to follow all pre-test, test and post-test procedures, because failure to do so can lead to serious legal repercussions. All companies must think twice before requesting applicants or employees to submit to such tests; be sure to consult experienced legal counsel before acting in this area. Finally, please note that the federal law also prohibits use of "deceptographs, stress analyzers, psychological stress evaluators or any other similar device" to screen job applicants. It also restricts employers from taking action against incumbent employees who refuse to submit to such tests.