There are two main groups of people who usually ask individuals to take polygraph exams: criminal investigators and employers.
And speaking of which, what should you do if your current employer or the one interviewing you wants you to undergo a lie detector test? Should you agree to comply or decline and risk everything?
In general, businesses cannot request, suggest or require any job applicant to take a pre-employment polygraph examination. Secondly, businesses can request a current employee to take a polygraph examination or suggest to such a person that a polygraph examination be taken, only when specific conditions have been satisfied.
On the other hand, whether or not an employer can force you to have a lie detector test is something that cannot be answered with a simple yes or no — as always, there are exceptions, although with some restrictions, to the rule.
Read on if the company you are applying to or working for wants you to take a polygraph.
In this post, I will talk about pretty much everything you need to know as a job applicant or employee when it comes to being asked to undergo a polygraph exam. Knowing your rights as well as those of an employer can give you an idea of the right steps to take if you feel uncomfortable with what’s being asked of you.
What is the EPPA?
Short for the Employee Polygraph Protection Act, the EPPA is a law that keeps most companies, especially private ones, from using lie detector tests either for pre-employment purposes or during the course of employment. The EPPA was signed on June 27, 1988 and became effective on December 27, 1988.
Just before any company considers asking its employees or applicants to undergo a polygraph test for whatever reason, it must first take into account the EPPA, which is also sometimes referred to as the Act.
As explained above, it’s something that generally prevents employers from using polygraphs.
But just because the EPPA is in existence doesn’t mean right away that no employee or job candidate can be asked to take a lie detector test. Like most other laws, the EPPA applies to only certain companies and situations. So, in other words, whether you are looking for a job or are already employed, you may be asked to take a polygraph with full legality.
Most private companies or employers — these are the ones that are covered by the EPPA. While with restrictions, there are instances when they may ask job applicants or hired individuals to take the test.
Here are some of the most important things you need to know about the EPPA:
- Employers covered by the EPPA are prohibited from using lie detector tests.
- Those that the Act covers are not allowed to use lie detector tests for pre-employment screening purposes or on employees during the course of their employment.
- Private employers covered by the law may not discharge, discipline or discriminate against an employee who refuses to agree to undergo a lie detector test.
- Similarly, they may not refuse to hire a qualified candidate who refuses to take the test.
- Under the EPPA, private employers may not inquire about the results of a lie detector test as well as receive any piece of information pertaining to it and use it, too, for any purpose.
- They are also not allowed by the Act to discharge or discriminate against a job applicant or an employee on the basis of the result of the lie detector test or for filing a complaint for participating in a lie detector test.
As mentioned a handful of times already, the EPPA covers most private companies or employers only. So, on the other hand, there are those that may actually ask people to take polygraphs without breaking the law.
Individuals who are applying for certain jobs at security service firms, such as those that provide armored cars, armed or unarmed security personnel, patrol services, security systems and video surveillance operators, may be required to go through a polygraph examination as a part of the pre-screening process.
The same is true for those who are looking to hold certain posts for pharmaceutical manufacturers, distributors, and dispensers to make sure that they are not simply after having access to drugs in order to sell them illegally.
Private companies are allowed by the Act to use polygraph examinations if they are involved in running facilities with a significant impact on the health and/or safety of a large population. Some of them include electric power plants and toxic waste disposals. This is to ensure that extremists or terrorists do not infiltrate them.
Besides for pre-employment purposes, the EPPA also allows polygraph testing of certain employees.
An employee of a private company who is reasonably suspected of being involved in a workplace incident such as theft or embezzlement that has resulted in economic loss or injury to the employer may be asked to undergo a polygraph.
Each and every company and/or employer subject to the EPPA, by the way, shall post on its premises a notice that explains the Act — and it should be kept posted, too.
While there is no size requirement for the poster, it should be placed in a prominent and conspicuous place in every branch or establishment where it can be readily or easily seen by the employees as well as job applicants. The EPPA poster is available in both English and Spanish. Posting a Spanish version is completely optional.
Are Government Agencies Covered by the EPPA
While most private companies are prohibited by the EPPA to use polygraph testing on both candidates and employees, government agencies, meanwhile, are not covered by it. This means that federal, state and local government agencies can require polygraphs. Public agencies are also not covered by the Act.
Looking to have a job in one of the numerous agencies of government? Then don’t be surprised if the hiring manager asks you to undergo a polygraph examination as a part of the screening process.
That’s because, unlike most private companies, government agencies are not EPPA-covered.
But fret not as you will not be forced to have a lie detector test. Applicants must first consent to be tested. Otherwise, there is no reason for them to have one. But keep in mind that since a lie detector test is a part of the pre-screening at most government agencies, candidates who refuse must be willing to face the consequences.
Running the risk of not getting hired — this is something that can stem from a person’s refusal to get polygraphed. And since government agencies are exempted from the EPPA, they cannot be sued.
However, there are instances, too, in which a polygraph examination for pre-screening purposes is voluntary. So, in other words, you may refuse to have a lie detector test with no adverse consequences. Most of the time, the option to take or not take the exam is limited to government agencies that are non-intelligence in nature.
In some cases, applicants have no other choice but to submit themselves to a lie detector test if they want to get hired. Anybody who is looking for employment in the FBI, for instance, is required to have a polygraph beforehand. Needless to say, those who do not comply are ineligible for employment.
Applicants to some positions in the DEA must also have a polygraph exam. Positions included are special agents and intelligence research specialists.
Some positions in the ATF require mandatory pre-employment polygraph, while others don’t.
Filing a case against the FBI, DEA, ATF and other similar agencies is not an option for someone who didn’t get hired simply for not agreeing to a lie detector test because, once again, various federal, state and local government agencies are not under the EPPA whatsoever.
Can You Be Forced to Have a Polygraph Test While Employed?
The EPPA allows certain employees or certain private companies to undergo polygraph testing. This is particularly true if they are reasonably suspected of being involved in theft, embezzlement, and others that have led to specific economic loss to the company or injury to the employer.
It’s not just while applying for a post when you may be asked to take a lie detector test — you may also be asked to undergo one while employed in the company you are working for.
Here are some examples of the things you may commit that may warrant you to take a polygraph:
- Loan sharking
- Money laundering
Just about anything that can harm the company, especially if economic loss or injury is involved, can cause the employee suspected to be involved in it to be subjected to a lie detector exam.
However, it’s important to note that while it’s true that the EPPA does not prohibit it from being done in such or a similar situation, polygraph testing is subject to certain restrictions. Also, it must be done with adherence to strict standards for the administration of the examination, including the pretest, testing and post-testing phases.
When a lie detector test is asked, it’s important for the employer to provide the employee with a statement prior to undergoing the exam. The language used has to be something that the individual understands. Also, it must fully explain the specific incident or activity being investigated, which is the basis for having the polygraph.
The said statement must contain the information below at minimum:
- Particulars of the specific economic loss or injury to the company or employer.
- Description of the access of the person to the property that is the subject of the investigation.
- Details of the basis of the employer’s reasonable suspicion that he or she was involved in the incident.
- A signature of the individual authorized to legally bind the employer in question.
What Should an Employer Do When Asking an Employee for a Polygraph?
There are many things that a company or employer who wishes to have an employer subjected to a lie detector test for having sufficient grounds must do. Some of them are notifying the individual in advance, handing a signed notice, and keeping all records associated with the polygraph administration.
Earlier, we made it clear that it’s very much possible for a private company to ask an employee to take a polygraph test if he or she is suspected to be involved in a workplace incident that has led to an economic loss or injury.
But it doesn’t mean that an employee can be required to take the exam just like that.
While there are exceptions to the EPPA, there are restrictions, too. And compliance with the Act by the company or employer when conducting an employment-related lie detector test can keep the requester of the polygraph examination from breaking the law and facing lawsuits.
Here are some guidelines for employers who would like to ask current employees to undergo a lie detector test:
- It’s important for the incident to be a specific investigation that’s still ongoing.
- There has to be an identifiable specific economic loss or injury to the company or employer.
- A copy of the Employer Polygraph Protection Act of 1988 should be procured.
- Provide the employee with a written statement that includes a clear description of the activity or loss that’s under investigation, the location of the loss, the specific amount of the loss, the type of economic loss and how the individual had access to the loss.
- Besides a description of how the employee had access to the loss, the employer should also state the kind of reasonable suspicion there is to associate the individual with involvement with the loss.
- The statement must be signed by the polygraph examiner.
- The statement must also be signed by someone else other than the polygraph examiner. He or she should be authorized to legally bind the employee and must be retained by the company for not less than 3 years.
- Read the Notice to Examinee, which should be then timed, dated and witnessed, to the employee.
- Provide the individual with a notice at least 48 hours in advance of the date and time of the scheduled lie detector examination. The notice, however, should exclude weekends and holidays.
- Provide the individual with a written copy of the notice of the date, time and location of the polygraph test. If the scheduled polygraph exam will be administered at a location other than at the place of employment, then the employer should also provide the employee with written directions to the site.
- Maintain a statement of adverse actions taken against the employee following a polygraph test.
- If applicable, the employer should conduct an additional interview of the employee prior to any adverse action after undergoing a polygraph test.
- Maintain all records related to the polygraph examination for not less than 3 years.
- All forms provided to the individual who is asked to take a lie detector test must have the company or business letterhead. Also, the corporate attorney should be asked to review all actions taken to make sure that each one of them complies with the EPPA.
- Employees may not waive their rights.
- Employers, on the other hand, are barred from inquiring about the results of the polygraph test. Similarly, they are not allowed to accept and/or use related pieces of information about the results.
- The credentials of the polygraph examiner should be checked thoroughly.
- In order to ensure that the polygraph examiner meets EPPA requirements, employers must not be too shy to ask for written proof of licensing, liability insurance and others.
- Check online reviews of the lie detector test provider.
- Police officers and crime investigators are not exempt and therefore must comply, too, if tasked with conducting an employment-related lie detector test. It’s important to note that the EPPA prohibits a police officer or crime investigator from providing any information about the polygraph.
- For each violation of the law pertaining to subjecting employees to a lie detector test, there is a $10,000 penalty employers must pay.
While the above information complies with the Department of Labor’s regulations relating to polygraph tests for employees, it’s by no means complete and definitive. If you are the owner of a company or business under the EPPA, it’s definitely a good idea to consult your corporate lawyer about administering lie detector tests to employees.
And it’s also important to keep in mind that if an employee refuses a request or suggestion to have a lie detector test, you cannot discipline or discharge him or her based solely on the refusal to submit to the exam.
Just Before You Agree to a Pre-Employmenr Polygraph Test
There are many state-licensed polygraph examiners in the US. As a matter of fact, it’s not uncommon for a lot of them to be members in good standing of the American Polygraph Association (APA) and other similar groups.
So, in other words, a polygraph examination is easily accessible.
But just because it’s available doesn’t mean that companies or employers can require job applicants as well as current employees to subject themselves to a lie detector test. In the country, there is the EPPA that prohibits most private companies from subjecting persons to a polygraph for pre-screening purposes or during their employment.
Above, we talked about various EPPA- and employment lie detector test-related stuff that can help you take the necessary actions whether you are a job seeker or employee or a company owner or employer. Keep everything you have read in mind and conduct additional research to know your rights or avoid having a brush with the law.