When something goes missing from the workplace, it may be tempting to turn to every detective show’s favorite cliché, the polygraph test. But are employers allowed to utilize such an examination? Congress addressed this question when it enacted the Employee Polygraph Protection Act of 1988 (EPPA), 29 U.S.C. § 2001 et seq. In general, the EPPA implements a series of restrictions on an employer’s ability to require, request, utilize or take actions based on a lie detector test. However, several categories of employers are exempt from the law. Government employers — including state and local governments — and certain federal contractors are entirely exempt from the EPPA, while employers involved in security services and firms authorized to manufacture, distribute, or dispense controlled substances are partially exempt.

Polygraph prohibitions

Private employers covered by the EPPA are ordinarily prohibited from directly or indirectly requiring, requesting, suggesting or causing an employee or applicant to take a lie detector test. Moreover, in many cases the law prohibits an employer from using the results of such a test. The EPPA generally forbids an employer from terminating, disciplining or discriminating against an employee or prospective employee for refusing to submit to a polygraph, and often forbids the employer from taking any action based on the results of the test. Beyond those restrictions, the EPPA also contains a retaliation provision, which makes it illegal to take any disciplinary action against an employee who exercises his or her rights under the EPPA.

When can an employer use a polygraph?

So, when can a private employer request an employee submit to a lie detector test, and how can it use the results to take action? A limited exception applies to employers engaged in an ongoing investigation into economic loss or injury to the employer’s business, such as theft or embezzlement. It is important to note that this exception is for requesting — not requiring — an employee to submit to a lie detector test. And this exception does not apply to potential employees.

Even under this limited circumstance, there are significant requirements that must be met to avoid potential liability. The employee being tested must have had access to the money or property that is the subject of the investigation, and the employer must have “reasonable suspicion” that the employee was involved in the activity that is the subject of the investigation. If those two criteria are satisfied, the employer is required to execute a statement, which must be provided to the examinee before the test, setting forth with particularity the specific incident or activity being investigated and the basis for testing particular employees. At a minimum, the employer’s written statement must include (i) an identification of the specific economic loss or injury to the employer; (ii) an indication that the employee had access to the property that is the subject of the investigation; and (iii) the basis of the employer’s reasonable suspicion that the employee was involved in the activity under investigation. The statement must be signed by a person, other than a polygraph examiner, who is authorized to legally bind the employer, and it must be retained by the employer for at least three years.

Employee polygraph rights

If all of the above requirements are met and the employee agrees to submit to the examination, then the employer can proceed with the polygraph test. However, that is not the end of the EPPA’s restrictions. An employee under examination must be given a list of their rights that apply either throughout or at various phases of the examination. Although the entire list of rights is too long to cover exhaustively in this article, several of the major limitations, which exist in all testing phases, are highlighted below:

• the examinee must be permitted to terminate the test at any time;
• the examinee must not be asked questions in a manner designed to degrade, or needlessly intrude on, such examinee;
• the examinee must not be asked any question concerning (i) religious beliefs or affiliations, (ii) opinions or beliefs on racial matters, (iii) political beliefs or affiliations, (iv) any matter relating to sexual behavior, or (v) beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations; and
• the examiner must not conduct the test if there is sufficient written evidence by a physician that the examinee is suffering from a medical or psychological condition or undergoing treatment that might cause abnormal responses during the actual testing phase.

Other important restrictions apply during the examination, such as providing the employee with certain written notifications and a copy of all questions before the exam, a prohibition on asking questions during the examination that were not previously presented to the employee, and a subsequent interview with the employee regarding the results of the examination after the test but before any adverse action is taken.

Taking action after a polygraph test

If you do desire to take adverse action against an employee who has either participated in a lie detector test or refused to do so, it is critical that you have “additional supporting evidence” that, in part, forms the basis of your decision. In other words, do not base an employment decision solely on the outcome of a polygraph test. The EPPA specifically notes that additional supporting evidence can be the same evidence that formed the reasonable suspicion that enabled the employer to request the polygraph examination in the first place. It also contemplates that statements made during the test can constitute additional supporting evidence.

Regardless of the employer’s ultimate decision to take action — or not — against the employee, it has a strict duty of confidentiality with regard to the results of the examination. The EPPA provides that a private employer may only disclose information from the lie detector test to the examinee; a court, governmental agency, arbitrator, or mediator, in compliance with a court order; or to a governmental agency if the disclosed information is an admission of criminal conduct.

A violation of the EPPA can lead to a private action by the employee, injunctive relief, and a civil fine of up to $10,000. It is also important to check state and local laws, as well as any collective bargaining agreement that may prohibit polygraph examinations altogether, as the EPPA does not preempt more stringent restrictions. Given the complex nature of the EPPA’s requirements and potential liability for violations, consider speaking with legal counsel before utilizing a polygraph examination with any employee.