Can I Refuse to Take a Lie Detector Test?
Lie detector tests, also known as polygraphs, are common tools used in public and private sector employment environments. They’re much less commonly used today than in the 1970s and early 1980s. Still, many employers, especially those in the public sector, rely on polygraphs as part of pre-employment screenings and random or specific employee interviews.
If your employer asks you to take a polygraph exam, do you have to comply with their request? Do you have the right to refuse it, or will you lose your job if you decline? It’s a confusing topic for many employees and employers, and there’s plenty of misinformation online talking about the legality of polygraph testing in the workplace.
Let’s unpack everything you need to know about the legality of polygraph testing and whether you can refuse to take the lie detector test at work.
The EPPA and Legality of Polygraphs in the Workplace
John Larson introduced the polygraph machine to law enforcement interrogation practices in 1921, with Leonard Keeler refining the device over the following decades. By the 1950s, the polygraph was widely used in law enforcement interrogation practices across the United States and the United Kingdom.
With public-sector adoption skyrocketing, polygraph technology started entering the private sector. Businesses and organizations started using the lie detector test in pre-employment screening and random and specific testing protocols in their employee policies.
However, several complaints of employers abusing the polygraph to avoid hiring certain individuals or using it on the job to weed out employees they found unfavorable started surfacing in the media. The media insisted that polygraph results were often inaccurate, resulting in unfair dismissals and unfair hiring practices in the private sector.
As a result of the uproar around polygraph testing in the workplace, then-president Ronald Reagan signed “The Employee Polygraph Protection Act” (EPPA) into power in 1988. The legislation banned the use of polygraph tests in the workplace, with certain exclusions.
The Act left the use of polygraphs in the public sector as is, but private-sector polygraph testing was only permissible in certain organizations. Private sector exclusions in the Act included companies such as high-value asset transport, security, and pharmaceutical manufacturing.
The Act also allowed non-specific companies excluded from the legislation to implement polygraph policies. Such exclusions included cases involving economic loss to companies caused by employee theft, sexual harassment cases, and other instances.
Employer Rights for Implementing a Polygraph Policy in the Workplace
The EPPA is still actively enforced by the US Labor Department today. As a result, employers may not use polygraph policies in the workplace unless they have just cause to do so. What does that mean, and how can employers go against the EPPA to institute polygraph policies for their staff?
Let’s look at a scenario to unpack it for you. Let’s say a company selling roofing materials experiences an inventory theft in the range of $50,000. This economic loss could sink the company, forcing it to close its doors because they don’t have the insurance to cover the theft.
The boss suspects it’s an inside job because the thieves deactivated the alarm system and turned off the CCTV during the theft. Therefore, in accordance with the EPPA, they have the right to polygraph their staff to uncover the culprits and start legal action against them.
However, the employer must follow a specific set of protocols when implementing a polygraph policy. The examining authority conducting the test must also comply with strict guidelines set by the EPPA when carrying out the lie detector test.
Some examples of these best practices include the following.
- The episode must be part of an ongoing specific investigation.
- The event must cause an economic loss.
- The employer must understand the Employer Polygraph Protection Act.
- The employer must serve their employee a document with the signature of an authority legally representing the employee.
- The employer must read the “Notice to Examinee,” witness, date, and sign the document aloud.
- The employer must give the employee advanced notice at least 48 hours before the polygraph exam.
Employers must comply with several other aspects of the EPPA to legally carry out the polygraph exam. Should they fail to comply with the EPPA, the US Labor Department may take action against the employer, fining them for each violation.
Fines are steep, and the employer must pay for each violation. So, if they test ten staff members, they’ll need to pay a fine in each instance, which could bankrupt the company. Therefore, employers need to hire a qualified attorney with advisory experience in managing the legal aspects of polygraph administration.
It’s also vital the employer hire a qualified, certified, and experienced polygraph company approved by The American International Institute of Polygraphs to conduct the test.
Employee Rights for Submitting or Refusing to Lie Detector Tests
So, what rights do employees have against employers forcing them to take polygraphs in the workplace? The good news is that the EPPA offers employees a lot of protection. The employer can’t use the polygraph results to fire them or discipline them unless they have corroborating evidence supporting the polygraph results.
What does that mean? Well, in our example of inventory theft, let’s say the employer polygraphs their staff, and two of their 15 employees fail the test. The employer already suspected the inventory manager and the security manager, and now the polygraph results support those suspicions.
However, they can’t use the polygraph results against them. That means they can’t fire the employees or launch disciplinary action against them. However, they can take the results to the police, and law enforcement can build a case against the two employees.
Polygraph results aren’t admissible as evidence in court, but they can corroborate other evidence in the case against the employees. It’s important to note that the EPPA protects employees in specific instances. The employer cannot force the employee to take a polygraph exam.
The employee has the right to refuse the test, and there’s nothing the employer can do about it. So, in this example of inventory theft, let’s say 13 of the 15 staff members agree to take the test, but the two that the owner suspects decline it.
That looks suspicious to the employer, but it’s not grounds for dismissal or disciplinary action. The employer may not make their work environment uncomfortable or act against them in any way, attempting to push them out of the company.
However, suppose the employer speaks to law enforcement and tells the police that their two employees refused the test. In that case, law enforcement may find this information beneficial in building a case against the suspects.
Employers must comply with all legislation surrounding the EPPA and how they handle polygraphing of employees and disclosure of results. That’s why it’s critical to have an attorney advising employers on correct procedures.
What are the Legal Considerations for Refusing to Take a Polygraph?
There are no legal consequences for refusing to take a polygraph test. Employers may not enforce polygraphing of candidates in pre-employment screening or for random or specific polygraph testing of their employees.
The employee also has the right to stop the polygraph process at any point during the exam. If they feel uncomfortable or anxious, they can tell the examiner they don’t want to continue the test. The examiner must comply with this request and halt the polygraph exam.
Once again, the employer may not reprimand or penalize the employee for stopping the polygraph exam short. They must respect the employee’s decision and the outcomes of the process. The employer may not threaten the employee or violate the EPPA, and the employee can seek legal advice against the employer.
The employer can further their case against the employer, seeking financial damages through the US Labor Department. Failing to comply with the EPPA places employers at huge risk of financial penalties. This is why they need legal assistance and professional polygraph companies working on their workplace polygraph policy.
What are the Consequences of Refusing to Take a Lie Detector Test?
While the EPPA affords the employee the right to refuse a polygraph exam, and the US Labor Department enforces these rules, the reality of their application in the workplace isn’t as black-and-white as the legislation suggests.
For instance, let’s say you’re applying for a job with a security company. The company transports cash from the Federal Reserve in New York City to banks in the state. When you’re applying for the job, it’s mandatory for candidates to take a polygraph as part of the pre-employment screening process.
There’s nothing wrong with this policy, and it complies with the EPPA. However, the employer may use the polygraph as a way to deny candidates a job. For instance, they may have racial prejudices against hiring a specific demographic of candidates.
The employer can say the candidate displayed behavior they find risky or deceptive, using the polygraph process as a filtering tool in the hiring process. Despite this practice being illegal, many companies use this strategy while denying it.
This situation was exactly what the EPPA was trying to prevent from happening. Still, the loopholes in the policy allow it to happen today, some 35+ years after the introduction of the Act. Refusing to take a lie detector test in a situation where the employer has a polygraph policy in place may result in them refusing to hire you, even though this practice is against the law.
If the employer has an attorney and a polygraph company bending to their whim, they can manipulate the system. As a result, the candidate or employee may not get hired, or the employer may use the tool as a means to start weeding out employees they don’t want in their organization. It’s a sad truth, but corruption exists in all industries.
How Do You Protect Your Rights During Lie Detector Tests?
If candidates or employees feel their employer or prospective employer is using the polygraph policy against them, they have a legal right to pursue action against them. The employee may hire an attorney to represent them in legal proceedings.
The employee or candidate’s attorney can file a complaint with the US Labor Department on their behalf, starting proceedings for financial restitution. However, it’s important to note that due to the cost of legal representation, and employees’ financial positions, they only choose to take this path if they can afford it.
In most instances, the candidate will move on if they’re rejected. The employer doesn’t have to indicate why they rejected their application; they can just say they found a more suitable candidate.
It’s also challenging for employees to set a legal framework in place for a case against the employer. They’ll need costly expert legal advice to do so. They’ll also need support from their fellow colleagues. As a result, the employee outed for theft or misconduct in the workplace may experience their employer using “Soft” tactics against them to force them to leave the organization.
Eventually, their workplace environment becomes so hostile that they leave of their own accord. It’s also important to note that employers cannot divulge or share polygraph results with anyone outside the organization.
So, if the employee finds a new job and their prospective employer calls them for a reference, the employer may not share the polygraph results in this case. However, nothing can stop the employer from divulging that they suspected them of theft.
How to Make an Informed Decision on Taking or Declining a Lie Detector Test
If your employer asks you to take a polygraph test, you can decline or accept it. The information in this article provides you with all the rights you have if you refuse the polygraph and the prospective outcomes that can occur if you accept or decline the request.
Spend some time assessing your options; they’re different for each unique situation. If you need help making your decision, call an experienced labor attorney to assist you on the matter. They’ll advise you on the best course of action and how it affects your rights.