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Polygraph Tests: Use With Caution

If you suspect that an employee has committed an illegal act, don’t make plans to conduct a lie detector test unless there are special circumstances.

To Tell the Truth:
Grounds for Lie Detector Tests

    Under the Employee Polygraph Protection Act (EPPA), one of the exceptions to the ban on lie detector tests involves continuing investigations of theft, embezzlement, misappropriation of funds and industrial espionage or sabotage.
    You must have a reasonable suspicion that the employee is involved in one of those crimes.
    In one case, a court emphasized a key distinction when an employer offered lie detector testing. (Gary Lee Watson v. Drummond Co. Inc., No. 04-15729, 11th Circ., 1/20/06).
    The facts: Drummond Co., a coal mining company in Alabama, suspected that a group of employees were involved in theft and drug dealing and fired them.
    The coal miners’ union challenged the firings and suggested that the company reinstate the individuals who passed a lie detector test. The company agreed but the individuals refused. They then sued Drummond, claiming that it was violating the EPPA by using the tests for reinstatement.
    The Ruling: The Eleventh Circuit Court disagreed, noting that:

  • The union, not the employer, proposed the tests.
  • The union is not an employer under the EPPA.
  • The company’s conduct fell under the open investigation exception to the EPPA.

The law in this area, and most prominently the Employee Polygraph Protection Act, makes it generally illegal to require or even request or suggest that an employee or a job applicant take a lie detector test. But there are exceptions. The law does not cover federal, state, and local governments and you can require some individuals to take a polygraph test, including:

  • Certain job applicants of security firms such as armored car, alarm and guard services.
  • Certain job applicants of pharmaceuticals manufacturers, distributors and dispensers.
  • Certain employees if your company suspects them of workplace theft, embezzlement or other criminal acts that resulted in specific economic loss to your company.

However, even in those situations, you must follow strict standards. Before you hook someone up to a polygraph machine, take these five precautions:

1. Conduct a thorough investigation with the help of legal counsel and the local authorities. You must have reasonable cause to believe a particular employee was involved in an incident and had access to the property in question. The burden of proof rests with you.

2. Give the employee written notice that explains in detail the incident under investigation. This includes the nature and amount of the loss, and why you suspect the employee’s involvement.

3. Ask the employee to sign a consent form for the test and have the document reviewed by legal counsel. The form should describe the test, list the employee’s rights, affirm the voluntary nature of the test, and provide for the release of the test results to you and the authorities.

4. Wait at least 48 hours after the employee signs the consent form before you administer the test. The waiting period does not include holidays or weekends.

5. Hire a licensed, bonded examiner with professional liability coverage.

Be sure to retain records related to the test for at least three years. This includes the notice to the employee, the employee’s consent form, and the test results.

In addition, document any adverse action taken and any interviews concerning the incident and its consequences. Also, bear in mind, the law strictly limits the disclosure of information obtained during a polygraph test. Check with your attorney.

An employer who violates the law can be liable for as much as $10,000 for each violation and may be required to hire, reinstate or promote an employee as well as pay lost wages and benefits.