You've heard about it. Maybe seen it on a hard-hitting police drama or in a detective film where the "bad guy" is hooked up to a machine with a fast moving needle, sweat beading on the criminal's face as he is subjected to intense questioning under a blinding spotlight. Enter the polygraph test.
In real life, the use of lie detector tests in an employment setting is far less exciting and much more heavily regulated by the federal government. Below you will find information on an employer's use of a polygraph test and when it may be required of a potential or current employer. See FindLaw's Employment Law and Human Resources page to learn more.
Who is Covered
The Employee Polygraph Protection Act (EPPA) applies to most private employers. The law does not cover federal, state and local governments.
The EPPA prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment.
Employers generally may not require or request any 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 a test or for exercising other rights under the Act.
Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act.
What Does EPPA Allow?
The Act permits polygraphs to be administered to:
Even then, polygraph tests are subject to strict standards for the conduct of the test, including the pretest, testing and post-testing phases. An examiner must be licensed and bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.
The EPPA provides that employees have a right to employment opportunities without being subjected to lie detector tests, unless a specific exemption applies. The Act also provides employees the right to file a lawsuit for violations of the Act. In addition, the Wage and Hour Division accepts complaints of alleged EPPA violations.
The Secretary of Labor can bring court action to restrain violators and assess civil money penalties. An employer who violates the law may be liable to the employee or prospective employee for legal and equitable relief, including employment, reinstatement, promotion and payment of lost wages and benefits.
Any person against whom a civil money penalty is assessed may, within 30 days of the notice of assessment, request a hearing before an administrative law judge. If dissatisfied with the administrative law judge's decision, such person may request a review of the decision by the Secretary of Labor. Final determinations on violations are enforceable through the courts.
Relation to State, Local and Other Federal Laws
The law does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.
Hiring an Employment Law Attorney
If your business is considering the use of a polygraph test for a future or current employee, speak to an employment law attorney. The consequences of violating the EPPA can be severe including payment of lost wages, benefits, and more.