Under the Employee Polygraph Protection Act of 1988 (the "Act"), employees and prospective employees of private employers can rarely, if ever, be compelled to take a polygraph test. (Government employees and employees of private government contractors engaged in national security or similar matters are excluded).
Generally speaking, a private employer may not:
(i) require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test;or
(ii) use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee; or
(iii) discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or prospective employee for refusal to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding or for exercising any rights afforded by the Act.
Private employers may force an employee to take a polygraph test under one of three very limited exemptions:
(i) current employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation; or
(ii) prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials or operations affecting health or safety, national security, or currency and other like instruments; or
(iii) prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employees who had access to persons or property that are the subject of an ongoing investigation.
There a variety of other regulations concerning how polygraph tests can be administered, what notice is required to be given to employees being polygraphed, and what rights employees have to refuse to take a polygraph.
Employees being asked to take a polygraph test should contact an experienced employment attorney before agreeing to the test, and employers should be very careful to ensure that they are complying with the Act. The Act requires strict compliance, and any deviation from strict compliance will subject the employer to a civil lawsuit brought by the employee or prospective employee.
