When you want to screen job applicants or evaluate current employees, you may wonder about what options you could use to determine their honesty or sincerity. You may have even considered using a lie detector test as another tool in your arsenal to see if a candidate is authentic or to clarify issues and conflicts in the work place. Before you decide to go that route, you need to educate yourself on the legal ramifications of asking your current or potential employees to submit to polygraph screening.
Should You Test Your Staff?
The short answer to acceptability of the lie detector test is emphatically, without a doubt, no. The Employee Polygraph Protection Act (EPPA), a federal law passed in 1988, prohibits most private sector employers from requesting or demanding that employees consent to such testing, with very limited exceptions, which will be discussed in a moment. The Act does not apply to local, state, or federal government employment or certain fields of industry which may include pharmaceutical manufacturing and security providers. Any results cannot be used to deny or terminate employment, and it goes without saying that they do not allow for any reason to discriminate. Employers are not even allowed to ask for the results, so polygraph testing serves no practical purpose.
This law is designed to protect employees’ rights to privacy, and with good reason. The test itself is designed to record biological reactions under questioning, but is not always a reliable indicator. In fact, the results are frequently not admissible in court settings, even in criminal cases. Employees and job applicants have the right to refuse polygraph testing, and employers are not allowed to use such refusal as grounds for dismissal.
When is It Okay?
In addition to the few exceptions mentioned above, there is one other time when an employer may ask for polygraph testing. If an employee is suspected of committing activity that may result in physical or monetary damages to a company, an employer may request a lie detector test. These actions can include embezzlement, theft, fraud, or other potentially criminal behaviors. Even if the results seem conclusive, however, they still may not be admissible, and the test administration must follow strict procedures to be accepted as valid.
What Are Your Options?
As an employer, you do have other testing avenues for determining if a candidate is fit for hiring and promoting. The less invasive the tests are, the more likely they are to stand up to legal challenges. Work within the parameters of what is common in business practices. Psychological and drug testing are more typical and even expected in some industries as long as the information is not used against an employee and does not violate the right to privacy. Medical testing is less likely to be a routine request, unless being physically fit for duty is a job requirement. This is especially true when complying with the Americans with Disabilities Act because the results of any such testing could not be used when rejecting a disabled candidate.
The Bottom Line
Your challenge as an employer is balancing your need to understand and know your employees with their right to privacy and other civil liberties. If you are unsure about the best direction for your hiring practices and current employee policies, you may want to seek the advice of legal counsel. Familiarize yourself with your state and local laws regarding lie detector and other invasive testing. Read up on standard hiring practices within your industry so that your procedures can be in line with typical protocol. The benefits of polygraph testing will not win over the ramifications, so unless your company falls into that very limited classification where it may be helpful, it is not worth the risk of liability.Legal Disclaimer
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.