When and How Can You Give Polygraph Tests to Employees?
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by Rebecca Berlin
The Employee Polygraph Protection Act prevents most employers from giving polygraph tests to employees or potential employees as a basis for screening for promotion or employment. So when can you give polygraph test to employees?
In general an employer can only request that an employee submit to a polygraph test if it is part of an ongoing investigation involving economic loss or injury to the employer's business. This would include incidents of theft, embezzlement, misappropriation, and acts of unlawful industrial espionage or sabotage. In addition the employee must have had access to the property that is the subject of the investigation and the employer must have a reasonable suspicion that the employee was involved in the incident.
If an employer asks an employee to take a polygraph test as part of an ongoing investigation, the employer must comply with the requirements of the Employee Polygraph Protection Act regarding notice and information that must be provided to the employee, methods of testing and unacceptable questions, licensing and reporting of the examiner, and the use and disclosure of the results of the test.
The employer must provide the employee with a statement which sets forth the specific incident or activity being investigated including an identification of the specific economic loss or injury to the employer's business. The statement must also assert that the employee had access to the property that is the subject of the investigation as well as the basis for the employer's reasonable suspicion that the employee was involved in the incident being investigated. This statement must be signed by an authorized representative of the employer other than the polygraph examiner and must be retained by the employer for at least 3 years. The employer must also inform the employee of the date, time, location and conditions of the test including the instruments involved, whether the testing area contains a two-way mirror or camera, and whether any recording or monitoring devices will be used.
During the test the examiner may not ask questions that are intrusive or degrading to the employee. The examiner also may not ask any question concerning religious or political beliefs or affiliations, beliefs or opinions regarding racial matters, any matter relating to sexual behavior, and beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations. The employee must be permitted to stop the test at any time. Also the employer may not conduct the test if the employee provides evidence from a physician that he or she suffers from a condition or is undergoing treatment that might cause abnormal responses during the test.
The examiner must be qualified and licensed under applicable state laws and be bonded or insured. The examiner's report must also meet the specifications required in the Act.
The Employee Polygraph Protection Act is administered by the US Department of Labor, Employment Standards Administration. Employers should consult with an attorney who practices in the area of Labor or Employment Law regarding the specific requirements of the Act.
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