03/ 25/ 2008
by Charles R. McConnell
There should be no argument with the contention that an employer has the right to ensure a workplace that's free from substance abuse, employee theft and general dishonesty. For years, a number of employers exercised this right in the form of employee polygraph testing. In fact, some businesses in which employees consistently handled cash and merchandise, such as retails stores or restaurants, subjected employees to random polygraph tests as a normal business practice. Also, some companies utilized polygraph testing in the screening of applicants for employment. However, in the 1980s increasing attention to matters of employee rights, specifically the right to privacy, brought employer polygraph testing under close scrutiny and subjected this practice to severe criticism. The debate over polygraph use versus employee privacy led to the passage of the Employee Polygraph Protection Act of 1988, government's effort to strike a balance between employer’s rights and employees' privacy.
The Employee Polygraph Protection Act (EPPA) prohibits most private-sector employers from requiring job applicants or current employees to take polygraph tests (aka lie-detector tests). Under this legislation, the routine use of polygraph tests is permitted only in organizations that produce and distribute controlled substances, and those whose work involves them in national defense, security services, nuclear power, some elements of the transportation industry, or certain involvements with currency, commodities or proprietary information. Detailed information concerning specific exemptions can be obtained through the United States Department of Labor (DOL), the enforcement arm for the EPPA, at www.dol.gov.
In most organizations an employee may be asked to undergo a polygraph test when "other evidence" provides management with reason to suspect the employee of some particular wrongdoing, like theft of money or property, or a forbidden activity, such as using illegal substances on the job. We might hear this matter of "other evidence" referred to as "reasonable suspicion" or, perhaps somewhat inaccurately, as "reasonable cause." However, as we might expect, plenty of controversy can arise around the way in which "reasonable" is defined in any given situation. It ordinarily requires some thoughtful investigation to reach a stage of "reasonable cause" or "reasonable suspicion."
Yet it can't be assumed that the employee who fails a polygraph test is automatically terminated from employment. In fact, under the provisions of the EPPA an employee can't be disciplined or discharged solely on the results of a polygraph test. But it should be clear, however, that an individual's failure of the test should provide the employer with what they need to complete an investigation successfully. That is, if continued investigation is needed, failure of a polygraph test is often sufficient to prompt the individual to then tell the truth.
Overall, the EPPA has restricted an employer's use of polygraph testing severely. Unless operating in one of the few arenas in which such testing remains allowed, an employer may not:
- Require an employee or job applicant to take a polygraph test (other than in instances covered by the law's exceptions).
- Take any adverse action against an employee or applicant for refusing to submit to a required polygraph test.
- Use, ask about, refer to or initiate any adverse action (such as discharge or other disciplinary action) based on the results of a polygraph test that an individual agreed to for a different reason. In other words, the results of a polygraph test given for one reason can't be used against that person for a different reason, perhaps one suggested or revealed while testing for the original reason.
When polygraph testing is permitted under "reasonable suspicion" or "reasonable cause," the polygraph operator may ask only questions that the individual being examined has reviewed before the test. Also, questioning is not permitted on:
- Religious affiliations or beliefs.
- Opinions or beliefs pertaining to racial matters.
- Political affiliations or beliefs.
- Any issue relating to sexual orientation or sexual behavior.
- Affiliations, beliefs, opinions or lawful activities concerning unions or labor organizations in general.
As suggested, the driving force behind this attention to polygraph testing has been the increasing prominence of individual privacy issues. Much of the existing legislation dealing with privacy is state legislation, and some of this state legislation addresses polygraph use. As with other subjects of legislation, federal law does not necessarily preempt state law. When state and federal governments both address the same topic via legislation, it is always the more thorough or restrictive law that prevails. Therefore it's recommended that those interested in applications of the EPPA also check for applicable state legislation.
