Are you applying for a new job? Depending on the company and the industry, you might have to take a polygraph exam as part of the pre-employment screening process. Is it legal for your prospective future employer to ask you to take a polygraph? Can they use the polygraph results to prevent hiring you?
Being told you have to take a polygraph adds to an already nerve-wracking experience of being interviewed by HR. What happens if you fail the exam? Is there a permanent record of the results other employers can hold against you?
What if you pass the exam and the employer refuses to hire you? Are they using the polygraph as a means to screen out candidates they don’t want to work at their organization? A lie detector is an important part of the hiring process for many companies, but do they abuse this privilege?
This post looks into the legality of the pre-employment polygraph, how it works, and if some companies use it as a screening tool to discriminate against a candidate.
The Role of the Polygraph Machine in Employment & HR Practices
A polygraph is useful for many firms in hiring and firing practices. When it comes to candidate screening, the polygraph can help weed out people that might present a threat to the business. These bad actors may cause issues after hiring that cost the company its economic security and brand reputation.
Typically, companies that implement polygraph policies do so for three reasons. They use it to screen new candidates for positions they’re looking to fill and for the random and specific testing of employees for other reasons.
For instance, if there’s a large theft in the workplace, the company might institute a polygraph policy to uncover the thief and remove them from the organization. Or they might use the polygraph to prevent hiring bad actors that could be planning a robbery.
However, not all companies can use polygraphs for these purposes. There are laws in place preventing many private-sector firms from polygraphing candidates and their staff. If the employer does use a polygraph policy, they must do so under strict rules and regulations.
The Introduction of the Employee Polygraph Protection Act of 1988
The polygraph entered the private sector in the late 1940s as a tool to assist employers with hiring and firing practices. By the 1960s, it was common in many companies across the United States. However, the US Labor Department started fielding calls regarding employer misuse of the polygraph in these processes.
As a result, the Reagan administration signed the “Employee Polygraph Protection Act” (EPPA) into power in 1988, during the final days of his second term in office. The EPPA legislation prevented the vast majority of firms from implementing polygraph policies in pre-screening and on-the-job testing. The EPPA afforded employees rights against the misuse of polygraphs in the workplace, preventing employers from abusing the practice.
Which Industries Can Use Polygraphs in Candidate Screening?
Despite the EPPA mostly stopping the use of polygraph policies in the workplace, the legislation did come with certain exemptions for specific industries. For instance, companies involved in the distribution and manufacturing of drugs, high-value asset storage, transport, and security do not have to comply with the EPPA.
These organizations can implement polygraph policies as they see fit. The EPPA also doesn’t apply to some public-sector organizations, such as those involved with the Justice Department or national security. So, if you’re applying for a position at any company in these sectors, they’ll make you take a polygraph exam before hiring you.
What are the Benefits of Using Polygraphs in Pre-employment Screening Practices?
Implementing a polygraph policy in the workplace, especially in pre-employment screening, benefits a company involved in high-risk industries like those previously mentioned. For instance, if you’re applying for a job with the FBI, they’ll use the polygraph as part of your background check.
People who handle classified information or investigate cases for the FBI require an extensive background check before hiring. This action prevents the organization from hiring people with criminal backgrounds or individuals who might leverage their authority position to harm others or sell state secrets.
Or, if you’re applying for a job with a drug manufacturer, the pre-employment polygraph prevents the company from hiring people that might have a drug habit or ties to organized crime. Employing these individuals might lead to criminal networks infiltrating the organization, resulting in theft, robberies, and other illegal actions from an insider who enters the organization.
The idea behind a pre-employment polygraph is to screen out undesirable elements they don’t want working for their company before they have the chance to damage the organization.
What are the Downsides of Using Pre-Employment Polygraph Screening?
One of the biggest concerns with the use of polygraph screening of candidates is the potential for abuse of the system. For instance, the employer may have an unwritten policy preventing hiring candidates from specific racial or ethnic groups.
If a person from this group applies for a job, it’s against labor law to deny them a proper application and due process in hiring practices. However, some employers may use the polygraph as a means to reject the candidate’s application, claiming that the employee failed the polygraph, even if they passed, allowing the employer to reject the candidate’s application.
It was these practices that led to the formation of the EPPA. Since its introduction, the EPPA has put in place laws preventing most private-sector companies from abusing the polygraph exam for this purpose. Employees now have protection under the Act, allowing them to make a proper application and prevent employers from abusing the polygraph to keep them out of work.
What Happens If an Employer Violates the EPPA?
If a candidate feels a prospective employer in the private sector unfairly uses the polygraph results against them, they file a complaint with the US Labor Department. The Secretary of Labor appoints a team to investigate the matter. They’ll look through the polygraph results and speak with the examiner regarding the lie detector test results.
The US Labor Department takes these complaints seriously. If the employer is found violating the EPPA and doesn’t use the right processes when polygraphing a candidate, they might receive up to a $10,000 fine for each infringement of the Act.
The candidate also has the right to seek legal assistance when filing their claim against the prospective employer. The candidate doesn’t need to take this path, but if they’re confident of the case they have against the employer, an attorney may assist them with the process, navigating the claim on their behalf.
How Does the Polygraph Work?
The polygraph exam takes place in a room with only the candidate and the examiner present. The employer may only watch the polygraph exam if the candidate consents to it. If they agree, the employer may not be present in the exam room; they must observe the events unfold through a two-way mirror.
The polygraph examiner will connect instrumentation to the examinee and wire them into the control box that links to a laptop running polygraph[h software. During the lie detector test, the examiner asks the examinee a set of predetermined questions relating to their job description and history.
The examiner may not ask the candidate about their personal life. Some examples of the questions asked in pre-employment polygraph screenings include the following.
- Have you ever stolen from an employer?
- Have you ever lied to an employer?
- Have you used illegal drugs or misused prescription drugs in the last six months?
- Have you ever been charged with a crime or gotten away with a crime undetected?
- Do you have any outstanding debts you can’t repay?
The polygraph examiner will review the candidate’s responses to these questions on their software and video record the session. They won’t give the candidate an answer regarding if they passed the test or not after the exam. The examiner reviews the results and footage at their office and writes a report for the client (employer) submitting their findings.
How to Prepare for a Pre-employment Polygraph
Candidates must prepare properly for the lie detector test before entering the exam room. Here are some tips to ensure peak performance on exam day.
Understand Your Rights
Before you enter the exam room, you should thoroughly understand your rights. For instance, you must know what the examiner can and can’t ask you during the test and that they have no authority over you during the exam session. In other words, if you want to leave the room at any point, you have the right to do so.
Ensure the Employer Complies with the EPPA
Your prospective employer must comply with all legislation surrounding the EPPA. They must give you at least 48 hours notice of your test date and the exam venue beforehand. The employer must read aloud to you the terms and conditions of the polygraph exam and ensure you understand them.
Your prospective employer will ask you to sign a documented copy of your rights, and they must provide you with a copy of the paperwork after you sign it. The examiner must also reveal the questions they’re going to ask you during the test; you won’t be going into it blind.
Research the Polygraph Exam
It’s common for people to feel nervous before entering the exam room. In some instances, overly anxious people might produce a false positive on the test, it’s not common, but it can happen. So, research everything you can on the polygraph exam before the test day. Find out how it works and understand your rights.
By taking this action, you’ll find you reduce the feelings of nervousness on test day. It’s not illegal or against the rules of taking the polygraph to research the lie detector test. In fact, your examiner will prefer it if you do. However, it would be best to refrain from researching and using countermeasures to the lie detector test. Doing so could result in an immediate failure of the exam.
Prepare Properly for the Test
Candidates should prepare properly for the exam the day before and the morning of the lie detector test. Proper preparation is the key to a successful interview. Stick to your routine the day before the exam, and don’t do anything the night before the test that’s out of the ordinary. It’s not the night to go out with friends for drinks or stay up watching a movie all night.
Ensure you get a good night’s sleep and avoid taking supplements or medications to help you sleep if you don’t use them regularly. Instead, download a guiding breathing meditation to help you get some shut-eye. Listen to the medication again the hour before the test.
On the morning of the exam, eat breakfast, and don’t overdo it with coffee. Caffeine is a nervous system stimulant, and it might cause an overreaction in the exam results if you drink too much. Don’t use anti-anxiety medication before the exam, as it’s considered a countermeasure to the test, and you could fail.
Speak to the Examiner
Speak to the examiner if you feel nervous before the lie detector test. One of the examiner’s primary roles is to ensure you feel comfortable before the polygraph exam. If you have an anxiety problem, mention it to the examiner and show them any prescriptions you have for medication like anti-anxiety drugs.
Can an Employer Use Polygraphs to Discriminate Against New Hires? – The Verdict
It’s possible for employers to use polygraph results to discriminate against candidates during the hiring process. After all, the EPPA is just legislation, and the US Labor Department requires the candidate to take action and file a complaint to get the process moving.
However, since the introduction of the EPPA, it’s difficult for employers to use polygraph results as grounds to prevent the hiring of candidates. The candidate may pursue legal action against them if they feel discriminated against, and the employer could face stiff financial penalties for their transgression.
Therefore, while it’s possible that employers could use the polygraph to discriminate against candidates, it’s not likely.