by Anne Lane
Employer use of lie detector tests is limited by the Employee Polygraph Protection Act. The Act limits the use of polygraph tests by most private employers. Federal, State and local government employers are exempt from the Act. Private employers in the security business and employers authorized to manufacture, distribute or dispense controlled substances are also exempt.
In general, an employer cannot require or even suggest that an employee or prospective employee take a polygraph test. The only exception is for investigations involving economic loss or injury to the employer's business. This includes theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage. The employer must also have a reasonable suspicion that the employee was involved in the incident that is being investigated and the employee must have had access to the property that is the subject of the investigation. If an employer requests that an employee submit to a polygraph test as part of an ongoing investigation, strict requirements must be adhered to regarding notice to the employee, administration of the test, and use of the results. The employer must provide the employee with a statement that provides the basis for requesting the examination that is signed by an authorized representative of the company. The employer must also provide the employee with information about his or her rights and remedies under the Act.
The employee has the right to terminate the test at any time. The employee cannot be asked questions that are degrading or that ask about the employee's political or religious beliefs, sexual behavior, or legal activities involving unions or labor organizations. Furthermore, the person who administers the test must be a qualified and licensed polygraph examiner who is bonded or carries sufficient liability insurance. The Act also limits the disclosure of the results of the test and the employer's use of the results. An employer who violates the Act could be subject to a civil penalty of up to $10,000. Also an employee or prospective employee who is affected by the employer's violation of the act can maintain a private civil action for employment, reinstatement, promotion and the payment of lost wages. For more information on the Employee Polygraph Protection Act, consult with an attorney who practices in the areas of Employment Law or Labor Law.