Lie detector tests: can your employer require you to take one?

In the past, polygraphs, more commonly known as lie detector tests, were surprisingly common features of the job application process. Employers would use them to delve into all kinds of personal questions with a prospective employee and then use it in deciding whether or not to hire. All of that changed with the passing of the Employee Polygraph Protection Act of 1998. This law virtually outlawed the use of lie detector tests in connection with employment. The law covers all private employers, but not government employees, although many government employees are covered by civil service laws. Let’s take a look at the details of the law and how it works:

It is unlawful under the statute for private companies to:

  • Require, suggest or cause any employee or job applicant to take a lie detector test
  • Use, accept, refer to or inquire about the result of any lie detector test previously conducted on an employee or applicant
  • Dismiss, discipline, discriminate against, or even threaten to take action against any employee or job applicant who refuses to take a lie detector test
  • Retaliate, fire or take adverse action against an employee for refusing to submit to a lie detector test

When can a lie detector test be used?

There are certain exceptions laid out in the law. Lie detector tests can be used in connection with jobs in security, handling of drugs or in investigating specific theft or other suspected crimes. However, before you can be required to take a lie detector test for purposes of an investigation the employer must:

  1. Give you written notice 48 hours before the test stating that you are a suspect
  2. Have a provable, reasonable suspicion that you were involved in the theft or other conduct triggering the investigation

Limitations on the test

Before an employer can give you a lie detector test he must read to you and ask you to sign a statement that includes:

  • A list of topics that you cannot be asked about such as religious beliefs, sexual preference, racial matters, lawful activities of labor organizations and political affiliation
  • Information on your right to refuse the test
  • The fact that you cannot be required to take the test as a condition of employment
  • An explanation of how the test results can be used
  • An explanation of your legal rights if the test was not given in accordance with the law

Also, while the test is being administered you may:

  • Stop the test at any time; and
  • Exercise your right to be asked the questions in a way that is not degrading or needlessly intrusive

More of what you need to know

If you are given a polygraph test and you believe that it was unlawfully administered, there is recourse for you. You can contact the U.S. Labor Department’s Wage and Hour Division and they can help you get legal recourse. An attorney can also sue for you if you were the wrongful subject of a polygraph test given by an employer. For more information regarding lie detector tests and employment, get in touch with a local attorney.[1]

[1] Repa, Barbara K., Your Rights in the Wokplace, Nolo (8th ed. 2007).