What employers need to know about lie detector tests

On Behalf of | Mar 16, 2020 | Employment Law

Someone has been stealing from your company. Maybe it’s the office or break room supplies or maybe something more expensive, like laptops. Perhaps someone has been embezzling money or disclosing trade secrets. Before you call in law enforcement, you’d like to get to the bottom of it yourself. Can you require your employees to submit to a lie detector test (also known as a polygraph test)? Probably not. In most cases, they’re prohibited by federal law — specifically the Employee Polygraph Protection Act (EPPA). Enacted over thirty years ago, the EPPA generally prohibits private employers from requiring or even asking applicants or employees to take these tests. Further, they typically can’t ask to see the results of any such test a person has taken or use the results of a test for any disciplinary or discriminatory purpose. There are exceptions. Government agencies at all levels are exempt from the EPPA. Some private businesses, such as those in the security and pharmaceutical industries, may administer these tests. However, there are strict regulations around them. For example, an employer must reasonably suspect that an employee was involved in wrongdoing and the employer must have suffered economic harm due to the alleged wrongdoing. If an employer has the right to legally administer a polygraph test, they must ensure that they give their employees the rights provided to them by the EPPA. For example, employees must be provided advance written notice of the test, with an explanation of the activity that’s being investigated. They must also be given information about what the test will entail and be informed of all of their rights under the EPPA — including their right to consult an attorney. Improperly or wrongfully giving employees lie detector tests — even if they volunteer for them — could land your company is serious legal jeopardy. In addition to the federal law, there may be state and/or local regulations that you need to be aware of. If you’re considering giving any of your employees lie detector tests, it’s imperative that you first talk with your attorney.