Employee Pricacy Right-Polygraph Testing

The Federal Employee Polygraph Act of 1988 prohibits most private employers not only from requiring job applicants or employees to submit to a lie detector test, but even from requesting that they take one. More than half the states have polygraph protection laws of their own. Many of these states prohibit employers from requiring job applicants to take polygraph tests as a condition of employment. In states where there are stronger laws prohibiting lie detector tests, the federal law is of no consequence and state law governs.

Employers cannot ask applicants or employees to undergo a polygraph test as a condition for getting a job or keeping a job. If employers or prospective employers ask individuals to take a lie detector test, they are prohibited from disciplining, discharging, or otherwise discriminating against individuals who refuse to take it. Employers cannot retaliate against applicants or employees for filing a complaint or otherwise asserting their rights under the law.

If employers proceed with the test anyway, they have to inform the employee that it is not mandatory to take the test, and that they can refuse to take it or quit taking it any time. In the test, there should be no question related to race, religion, sex, etc., or any question that infringes on employee privacy. The test results cannot be disclosed to anyone other than the employee and the employer.

Exceptions

The law does not stop employers from ordering lie detector tests when workplace theft or other misconduct causes a financial loss, but tests can be given only under certain circumstances. For example, the employer must be investigating a specific incident related to theft, sabotage, arson, or misappropriation; the employee(s) must have had access to the missing or damaged property; and the employer must have reasonable suspicion. Before being asked to undergo a polygraph test, employees should be provided with a written notice about the incident being investigated and the suspected reason. They should be provided with at least 48 hours’ notice regarding the time and place of the test.