Are you considering giving employees or applicants a lie detector test? Before you go down that road, be aware of the laws limiting the use of these tests. It’s important that you know when you can and can’t require someone to take a polygraph, how to give the test, and what you are allowed to do with the results.
The Employee Polygraph Protection Act of 1988 (EPPA) regulates the use of polygraphs in employment situations. It generally does not allow employers to require or request employees or applicants to take a polygraph test, but there are some specific circumstances when you can have someone take this test.
These tests are given using a polygraph machine that analyzes someone’s responses to a set of questions. It’s commonly called a “lie detector” test, and that term is used in this article, even though it’s somewhat of a misnomer, and a polygraph is only one type of these tests. The term also includes other devices used for rendering a diagnostic opinion about an individual’s honesty or dishonesty.
EPPA Regulations on Polygraph Tests
Your business can only require or request someone to take a polygraph test for pre-employment purposes or during employment for specific situations. You also may not discharge or discriminate against an employee or applicant for refusing to take the test or exercising other rights under the EPPA.
You can require this test if the employee was “reasonably suspected” of involvement in a workplace incident, like a theft or embezzlement, and if the incident resulted in a financial loss to your business. You must use a licensed and bonded polygraph examiner (or someone who has professional liability coverage). The law has strict standards for the test process, and it limits the disclosure of information from the test.
State Laws on Lie Detector Tests
Some states have even more restrictions than the federal rules for employee lie detector tests. You must comply with the more restrictive law (federal or state). Some specific restrictions in state laws, for example:
- Iowa law does not allow an employer to request or require an employee or applicant to take a polygraph exam. The law also prohibits employers from threatening or attempting to administer an exam to an employee or applicant.
- Illinois restricts certain questions on the lie detector test (unless they are directly related to employment). These include queries about political, religious, or labor-related beliefs, affiliations or lawful activities, belief or opinions on racial matters, and sexual orientation or activity.
Check with your state’s laws to make sure you comply with them.
Giving a Lie Detector Test
The EPPA also regulates the process of giving a lie detector test to an employee or applicant, with requirements for giving notice and for the administration of the polygraph.
Giving Notice to an Employee or Applicant
If you want to give someone a lie detector test, you must give them a notice. Specifically, it must be written and include the date, time, and place of the test.
The notice must include:
- A statement that the examinee has a right to consult with legal counsel or an employee representative before each phase of the test;
- A written description of the polygraph instrument and how the examination process works;
- “Extensive” written notice about the examinee’s rights, including a list of questions and topics that may not be asked, the examinee’s right to end the examination; and
- Details of the examinee’s right to file a complaint with the Department of Labor if he or she believes there has been a violation of the EPPA.
At the Time of the Test
At the test site and before you give the test to an employee or applicant, you must give them a statement in a language they understand that fully explains the specific reason for the test (the incident), and why you are requiring specific employees to take the test. This statement must include:
- Details of the specific economic loss or injury to your business
- How this specific employee had access to the property
- Details of the basis for your suspicion that the employee was involved in the incident
The statement must be signed by a responsible party at your company other than the polygraph examiner (someone authorized to act on behalf of the company).
After the Lie Detector Test
You must keep records on everything relating to a specific lie detector test for a minimum of three years from the date of the examination (or the date the test was requested). The law also strictly limits your ability to disclose information from a polygraph test.
Don’t Forget to Display EPPA Poster
If your business has employees and you are not a government entity, you must display the EPPA poster at your workplace.
Employee posters must meet specific requirements for language. To make sure you have the correct poster, order or download it from the Department of Labor.
You must display this poster and other required posters where employees and applicants can see it (that may mean more than one poster). If you have online employees or applicants, you can put the required posters on your company’s website for these people to see.
Consider seeking legal advice if you have additional questions about the practicalities and limits of giving a polygraph test to your employees.