What happens if you fail a polygraph exam? Can the police or your employer use it as evidence in a case against you? What are your rights? Going through the lie detector test is hard enough as it is. Anyone who’s undergone one can tell you it’s easily one of the most anxious and nerve-racking experiences they’ve ever had to endure in their life.
But the thought of someone using it as evidence in court against you in a criminal or civil case is a close second to that fear. What does the law say about the admissibility of polygraph evidence in court and pre-trial negotiations?
The post gives you the answers you need. We’ll examine the legislation surrounding polygraph admissibility and whether your employer or prosecuting authority can admit it as evidence in your trial.
How Does Polygraph Questioning Work?
First, let’s get an understanding of how the polygraph works. Many people believe that the examiner (the person responsible for conducting the lie detector test) can ask you anything they want during the exam, but that’s not the case. The examiner must stick to asking questions that are pertinent to your case.
For instance, your employer accuses you of theft and asks you to take a polygraph exam. In this case, the examiner will ask you questions surrounding the event and your history relating to the crime. They might ask you if you’ve ever stolen from an employer before, if you use drugs, if you have any outstanding debt you can’t repay, and if they ask you directly if you’re responsible for the crime.
They won’t be asking you questions about your personal life, and in most cases, they don’t ask about irrelevant periods in your life going back more than five to ten years, depending on your age. The examiner asks you a set of irrelevant, relevant, control, and concealed information questions in a format known as the “Irrelevant/ Relevant” (I/R) questioning technique.
Criminal exam questions are much more pressing than those used in civil cases. In this case, the examiner might use the Reid “Control Question Technique” (CQT), and they’ll press you much harder to uncover your guilt for the crime in question.
The Legality of the Polygraph Exam in the Private and Public Sector
In the past, polygraph exams were typically conducted on suspects or witnesses involved in criminal cases. The polygraph results would support a criminal investigation by the police or government agency. However, polygraphs eventually found their way into the private sector, where employers would use them in pre-employment screening processes or in random or specific employee testing.
Before the era of polygraph software, many experts complained about the accuracy of lie detector results. They claimed conflicting factors, such as the examinee being overly nervous during the test, as contributing factors to false results.
The US Labor Department also received many complaints from the private and public sectors regarding employers’ abuse of polygraph exams. These claims stipulated that employers would use polygraph exams to remove people from their organization who they thought were underperformers.
Similarly, employers would use the polygraph exam to prevent hiring candidates they found undesirable, such as POC applicants. Due to the uproar across all industries, the Reagan administration signed “The Employee Polygraph Protection Act of 1988” (EPPA) into power in his final weeks in office.
The EPPA prohibited employers from implementing polygraph policies in the workplace for employee and candidate testing. However, there were some exemptions to the Act. For instance, the EPPA didn’t apply to government agencies where employees might have access to sensitive information, such as law enforcement and the national security complex (CIA, FBI, DOD, NSA, etc.).
These exemptions also apply to certain private-sector companies involved in high-risk activities, such as high-value asset storage and transport, security, and pharmaceutical manufacturing and distribution. Employers in the private sector that aren’t involved in these activities may also implement specific employee polygraph testing if they have the right motivation.
For instance, if the employer experiences a severe theft presenting economic loss to the company, fraud, sexual harassment claims, or employee drug abuse. Suppose the employer wishes to implement a workplace polygraph policy. In that case, they must adhere to the EPPA or risk violating the Act and receiving a huge financial penalty against their company by the US Labor Department.
Polygraph Exam Results and the Pre-Trial Process
Polygraph results are not typically allowed as admissible evidence in criminal or civil trials but may be admissible as evidence in the pre-trial process. In some cases, you might want to take a polygraph to prove your innocence on the charges brought against you.
In this case, your attorney will arrange for a private polygraph firm to conduct the exam. If you pass the test, your attorney can ask the prosecutor to consider the value of the test results. The prosecutor may accept the results, or they might want you to undergo a second test conducted by an examiner associated with the prosecutor’s office.
If you’re innocent, the prosecutor might decide to drop the charges against you if the polygraph results support your claim. Or if you’re partially guilty, your attorney can use the polygraph results in a plea bargain negotiation, or other related pre-trial activities.
Where are Polygraph Results Inadmissible in Court?
The rules surrounding the admissibility of polygraph exam results into evidence in court trials differ from state to state. At large, most states don’t allow the admissibility of test results into evidence. However, some states may allow it, provided the defendant’s attorney and the prosecutor agree to admit the results.
Today, 23 states will consider the admissibility of polygraph exam results into evidence in trials, depending on the case’s merits. These decisions usually apply to criminal cases, but some states have rules surrounding the use of polygraph results as admissible evidence in civil matters. These states include Texas, New York, Pennsylvania, Illinois, and Washington, DC.
It’s important to note that there are many states that don’t make this compromise and still regard polygraph results as inadmissible in court. There are also repercussions involving false positives made by examiners in civil matters.
For instance, in the state of Georgia, an employee that suffers harm to their reputation and career due to false polygraph results may sue the company and polygraph examiner for damages and legal costs. However, many states won’t consider this.
The reason why courts are so divided on this matter is due to the ruling made by the Court of the District of Columbia regarding Frye v. US in 1923. At the time, a man named Dr. William Marston used his early version of a lie detector device, known as the “Systolic Blood Pressure Test,” to prove the innocence of James Frye in a murder case.
Marston proved Frye provided a false confession of guilt and should not be prosecuted for the crime. The court disallowed the results of Marston’s exam, stating the technology was too new and not verifiable. Therefore, it was not suitable as admissible evidence in the matter.
70 years later, in 1993, the Federal Rules of Evidence (“FRE”) usurped the Frye ruling, giving judges the final say on whether they wanted to admit polygraph results as evidence in trials. In 1993 the US Supreme Court decision regarding Daubert v. Merrell Dow Pharmaceuticals replaced the Frye ruling. The Supreme Court stated polygraph results could be admitted as evidence, provided they met the five elements of the Daubert standard.
In the 1998 case of US v. Scheffer, the US Supreme Court stated polygraph exam results did not need to be admitted as evidence in military cases unless the judge granted permission per the Daubert standard.
When Are Polygraph Results Inadmissible in Court?
Polygraph exam results aren’t admissible in court if the state in question doesn’t recognize the validity of polygraph results. They are also not admissible if the defendant’s counsel and prosecuting authority don’t agree on admittance. Polygraph results also don’t count as admissible evidence in cases where the law prohibits it in specific circumstances or if the judge refuses the admittance request.
As mentioned, this is due to other “experts” claiming the results are unreliable, despite the massive improvement in the accuracy of test results since the era of computerized polygraph technology. According to the experts, the polygraph device might be defective, or the examiner hosting the polygraph session may have a specific bias.
Polygraphs supposedly provide inconsistencies in response to physiological indicators implying emotions of anxiety, frustration, or surprise, more than guilt. Additionally, the experts claim there are other ways to find supporting evidence for the trial, and should only be used as a last resort and in corroboration with other evidence pointing to the same conclusions.
There is also much speculation and proof around law enforcement using polygraph results to pressure suspects into making false confessions under duress. An example of this would be when John E. Reid used his questioning technique, “The Reid Technique,” to coerce a confession from Darryl Parker.
Parker would confess to the murder of his wife under Reid’s questioning in a polygraph session. However, he would recant his statement the following day, claiming Reid pushed him into making a false confession. Parker claimed this act violated his constitutional rights and later sued the state for wrongful arrest.
Reid’s questioning technique also came under fire by employees of national security agencies, such as the CIA. They claimed his questioning process turned the examiner into an interrogator, with the intention of creating a failed result on the polygraph exam.
Can I Be Forced to Take a Polygraph Test by the Police or My Employer?
The EPPA and state laws make it illegal for employers and law enforcement to force a lie detector test on anyone. Employees have the right to refuse their employer’s request to take a polygraph, and the employer cannot fire them or reprimand them for their decision.
Suspects in criminal cases also have the right to refuse to participate in polygraph exams. However, if the suspect consents to the test, the prosecuting authority can use the results as evidence against them in a court trial.
Even if law enforcement tries to pressure the suspect into taking a polygraph, the defendant has the right to refuse the test. It’s also important to note that even if the court denies the prosecuting authorities’ request to admit the polygraph results as evidence in the case, the prosecutor can use the final polygraph report to support their case.
This also applies to other cases involving crimes in the private sector. The judge acts as the final barrier of entry for polygraph results in all cases. However, the prosecutor may use the polygraph results if they support other evidence corroborating the test results.
Can I Take a Polygraph Exam to Prove My Innocence?
While it’s not a practice attorneys recommend, in some cases, a defendant in a criminal case might decide to volunteer for a polygraph exam. We’ve already discussed the fact that the defendant can use the results of a passed test to negotiate with the prosecutor.
However, the prosecutor has the right to ignore the test results and continue with their case. If the defendant takes a polygraph test and fails, the defendant’s attorney is not obligated to hand over the test results to the prosecutor.
Since a private polygraph company conducts the polygraph exam, they are also not obligated to turn over the test results to the prosecutor. The defendant’s attorney can simply act like the test never took place.
Do I Need an Attorney to Assist Me with Polygraph Test Issues?
The laws surrounding the legality of polygraph exams and test results in civil and criminal cases can be challenging to navigate. If you’re involved in an alleged crime or civil dispute, it’s best to consult an experienced attorney.
Each jurisdiction has different procedural requirements for polygraphs and interpreting results. There may also be clauses in the regulations that don’t apply in all states. An experienced criminal or civil defense attorney can advise you of your rights, discuss your test results, and explain how it applies to your case.
If you’re scheduled for a lie detector test, it’s natural to have questions about the process, what you’ll be asked, and how the experience will feel. Whether you’re facing this as part of a government security clearance, a private sector employment screening, or even to address personal matters like infidelity, it’s crucial to go in prepared.
This article aims to demystify the experience by providing insight into the types of questions typically asked during these tests. We’ve compiled a list of the ten most common questions in lie detector tests, along with additional ones that often come up in cases of suspected infidelity. You’ll gain a clearer understanding of what to expect, whether you’re engaging with a Federal Government agency or an employer in the private sector, and even in more personal scenarios.
Remember, the context of the test—be it professional or personal—can significantly influence the questions posed. In professional settings, questions might focus on honesty, integrity, and past behaviors relevant to security or trustworthiness. In personal settings, particularly in cases of suspected infidelity, the questions become more intimate, probing into private aspects of relationships and personal conduct.
Why Do Companies and Agencies Use Polygraph Exams?
Government agencies and private-sector employers use polygraph exams for three reasons.
Pre-Employment Screening
These polygraph exams help the employer determine if you’re the right person to hire. The test involves assessing your background to see if you have any history of criminality, drug use, or other behavior that might present a risk to the business and staff if they hire you.
Typically, these polygraph exams only apply to Federal agencies and select industries in the private sector. Most private-sector employers cannot use pre-employment polygraphs in hiring as it’s against the “Employee Polygraph Protection Act of 1988” (EPPA).
Random Employee Screening
These polygraph exams involve the random screening of employees in intervals ranging from six months to three years. The employer may use these exams as part of internal processes to ensure their employees meet their standards for employment.
Like pre-employment screening, these tests are only available to Federal agencies and select private-sector employers. Most private-sector companies cannot issue random polygraph testing of their employees.
Specific Employee Screening
The employer schedules these polygraph exams if an event occurs in their agency or business that involves criminal intent. For instance, a theft that presents an economic loss to the company, fraud, sexual harassment, and other serious crimes.
Unlike the previous two polygraph exams, private sector employers may issue specific employee testing, regardless of their industry. However, they must comply with the guidelines set by the EPPA when implementing their polygraph policy.
What Industries Use Polygraph Exams?
Most public-sector agencies, such as the US Justice Department, and those involved in national security use pre-employment, random, and specific polygraph testing for candidates and employees. Private sector companies involved in high-risk industries exempt from the EPPA, such as security and pharmaceutical manufacturing and distribution, may also use these tests.
What are the Types of Questions Asked in a Polygraph Exam?
The polygraph exam involves the examiner asking the examinee a mix of the following types of questions.
Relevant Questions
In candidate screening and specific and random employee screening, the employer may be interested in the examinee’s background and current activities. Relevant questions refer to the primary questions pertinent to the reason for the polygraph. They may involve criminal history, drug use, and employment history.
Irrelevant Questions
Irrelevant questions don’t have any impact on the emotional response from the examinee during the polygraph exam. The examiner incorporates them into the polygraph test to detect the examinee’s baseline emotional and physiological response.
Comparison Questions
Irrelevant or control questions serve the role of providing a comparison to irrelevant and relevant questions. The examiner expects examinees that answer questions truthfully to be overly concerned about control questions than they are about relevant questions and compares the examinee’s responses to control and relevant questions.
Concealed Information Questions
Unlike relevant questions, which ask the subject directly if they committed a crime or used drugs, concealed information queries aim to uncover information about these issues that only guilty examinees would know. For example, details about a crime or how it was carried out. Guilty examinees produce a different physiological response to relevant questions than irrelevant questions, but innocent examinees respond equally to all questions.
There’s a significant difference between the questions and format of questioning between private-sector and public-sector polygraph exams. The R/I technique is used in both sectors but with different formatting.
The original R/I method was developed by Dr. William Marston, a psychologist responsible for developing the first American lie detector exam and device. An adaptation of his R/I technique is still in use in pre-employment screening in the United States.
However, the R/I technique used by the Federal Government uses a different questioning strategy than employment polygraphy. Experts agree that the current version is a variation of the “Control Question Technique” (CQT), which we’ll cover later.
As currently implemented by Federal polygraph examiners, the R/I technique relies on a control question format and comes in three different versions.
The traditional R/I Technique
The Federal variation.
The R/I technique is used in standard pre-employment screening tests in the private sector, but for Federal employees.
In the traditional R/I exams, the examiner asks relevant and irrelevant questions. Deceptive examinees exhibit significantly greater reactions to relevant questions than to irrelevant questions. Non-deceptive examinees respond equally to all the examiner’s questions since they don’t fear questions relating to crimes and drug use more than irrelevant ones.
According to psychologists, there are several well-recognized issues with the traditional R/I technique. For instance, the intent of irrelevant and relevant questions is transparent, meaning the examinee finds the relevant questions more arousing for deceptive and truthful subjects.
The questions in the R/I technique aren’t typically reviewed with the examinee pretest. As a result, an overreaction to relevant questions may be due to their misunderstanding, surprise, or deception. The examinee’s reaction to these questions could also be muted due to drug use, such as Xanax, or to the reduced responsivity of examinees.
These effects are more challenging to detect with the R/I technique than with other questioning methodologies. Due to these issues, there’s little confidence in the traditional R/I technique.
As a result, the traditional R/I technique isn’t usually valid for use in specific incident polygraph exams conducted in the public or private sector. Typically, it features in employee investigations involving nonspecific topics, such as pre-employment screening.
The Federal Government will occasionally use the traditional R/I technique and a version that functions as a CQT. The Federal Government version is the General Question Test (GQT). It’s similar to the Reid Technique we’ll discuss shortly, with the goal of asking questions covering all aspects of the examinee’s life.
The Reid Technique & CQT – Relevant Questions for Federal Polygraph Exams
Federal agencies, such as the CIA, FBI, and NSA, typically use the CQT test developed by John E. Reid & Associates when screening employees. The test uses four relevant questions.
Did you steal any merchandise from previous employers in the last five years?
Did you steal any money from previous employers in the last five years?
Did you take part in or commit any serious crime in the previous ten years?
Did you falsify information on your employment application?
The Reid Technique varies from the Federal method in specific ways. For instance, if the examinee doesn’t admit guilt to any of the above questions, the examiner may probe the examinee until they admit to one. For example, they might press the subject to admit to an act as menial as stealing pocket change from their parents as kids.
The examiner rules out past transgressions by adding an exclusionary phrase, “Other than what we have discussed, have you ever stolen anything from an employer?” It’s assumed by the examiner that, at this point, the examiner is possibly concealing other actions or is anxious that there are others they might have overlooked in their past.
This anxiety is elevated due to the polygraph examiner’s emphasis on uncovering the truth and ascertaining the examinee isn’t the type of person that could commit a crime referred to in the relevant questions.
Additionally, the examiner includes irrelevant questions alongside relevant and control questions during the exam to establish a baseline response in the examinee. Several versions of the CQT technique are regularly employed in Federal exams, and its adaptations depend both on the examiner’s training and the test situation.
The Reid Technique variant of the CQT may include relevant questions regarding several aspects of potential crimes, such as breaking into an employer’s office, stealing a check, and cashing it. Examiners using Reid’s version of the CQT compare responses to relevant and control questions.
They note the examinee’s behavior during the session, looking for behavioral symptoms in deceptive subjects. The examiner compares polygraph responses bolstered by information regarding the examinee’s behavior to judge the examinee’s veracity.
Here’s an example of the types of questions and progression used in the Reid CQT polygraph exam.
Is your nickname “Jim?” (Where information disclosed in the pretest interview shows the examinee said their nickname was as such).
Are you over 18 years of age? (Where the examinee’s age is close to this figure).
Last Saturday night, did you rob the warehouse?
Are you in Los Angeles now?
Did you rob the warehouse?
Besides what you’ve told me about, have you ever stolen anything else?
Did you go to school?
Did you steal the company inventory last Saturday night?
Do you know who stole the merchandise from the warehouse?
Have you ever stolen anything from a place where you worked?
Polygraph Exams in the Private Sector – Adaptations of the R/I Technique
Regarding polygraph testing in the private sector, examiners typically use a variation of the R/I technique as the principal questioning method in pre-employment screening or random and specific polygraph testing of employees.
Unlike the questions featured in other techniques, the R/I questions don’t always focus on one specific instance, such as the example of robbing a warehouse mentioned previously. So, the examiner can use this R/I method to assess several issues to evaluate the examinee’s responses and honesty.
In pre-employment polygraph exams, the examiner typically presents the examinee with a series of relevant questions. They’ll interject with irrelevant questions randomly to establish a baseline response in the examinee.
Most relevant questions asked during the exam refer to the examinee’s past behavior that might disqualify them from the job they applied for with the employer. Examples include theft, debt, drug use, fighting with colleagues, or sexual harassment.
Some exams may include relevant questions regarding the candidate’s background or intentions regarding the reason for working for the company. For example, “Are you seeking employment with this company for reasons other than legitimate employment?”
10 Most Asked Relevant Questions During Employment Lie Detector Tests
If you’re going for a pre-employment polygraph screening, you can expect the examiner to ask variations of the following ten relevant questions during the session.
Did you tell the truth on your employee application?
Have you ever deliberately withheld information from an employee application?
Have you ever been fired from a job?
Since the age of 16 have you ever been convicted of a crime?
During the past year, have you used cannabis more than once per month?
Have you used any other illegal drug or abused or misused any prescription medication in the last year?
Have you sold or distributed cannabis, illegal drugs, or prescription medications in the past five years?
Have you ever stolen more than $500 worth of merchandise in any calendar year from an employer?
Are you seeking employment with this company for any reason other than legitimate employment?
Have you deliberately lied to any of the questions I asked you?
Top 15 Lie Detector Test Questions to Uncover Infidelity
Below is a list of the top 15 lie detector test questions designed to uncover facts about infidelity. These questions are tailored to directly address the issue, leaving no room for misinterpretation.
Questions:
Since [specified date], have you had sexual intercourse with someone other than your partner?
Have you used a dating app or website to meet someone else while in your current relationship?
Since the beginning of your relationship, have you kissed someone else with a romantic interest?
Have you lied to your partner about your whereabouts for the purpose of meeting someone else?
Did you exchange explicit messages or photos with anyone other than your partner since your relationship started?
Have you spent the night away from home with a romantic interest other than your partner since your relationship began?
Have you told someone else you are not in a relationship when in fact you were?
Have you had romantic feelings for someone else and acted upon them since starting your current relationship?
Have you received gifts from a romantic interest other than your partner and kept them secret?
Are you currently maintaining a secret romantic relationship with someone other than your partner?
Have you engaged in any form of sexual activity with a person other than your partner since the start of your relationship?
Did you visit anyone with the intention of engaging in sexual activities while in a committed relationship with your current partner?
Since being in your relationship, have you had a sexual encounter with someone else while traveling or on a trip?
Have you ever shared a hotel room with someone you were sexually involved with, other than your partner, since your relationship began?
Since committing to your current partner, have you participated in any sexual acts, including but not limited to oral sex, with another individual?
The questions listed above are designed to cut through the complexities of emotional narratives and focus on the factual aspects of infidelity. It’s important to remember that the use of a lie detector test should be a carefully considered decision, particularly in personal relationships. The results can have a significant impact on the individuals involved and should be handled with the utmost sensitivity and respect for privacy.
Open communication, counseling, and mutual understanding are also vital components in navigating the challenges of a relationship impacted by infidelity suspicions.
How Do You Receive Your Polygraph Exam Results?
After completing the polygraph exam, the examiner will thank you for your time and ask you to leave the room. Don’t ask the examiner for your test results before you go; they can’t give them to you because they have yet to make their final assessment of the polygraph test.
The examiner takes the data from the exam session and analyzes it alongside the video recording of the test at their office. If they suspect you’re being deceptive, they’ll review the recording and study your body language to confirm their suspicions.
Once the examiner is confident of their decision, they type a report and send it to the client requesting the polygraph exam. Your employer will notify you of your test results two to three days after taking the test.
The approval of Proposition 215 in 1996 saw California become the first US state to legalize medical cannabis use. Nearly three decades later, 21 states have fully legalized marijuana use, with 37 approving medical marijuana programs.
Marijuana use exploded with the passing of Proposition 64: The Adult Use of Marijuana Act in California in 2016. The drug was rapidly adopted across the country, including in the nation’s capital, Washington, DC. With more people using marijuana in flower, concentrate, and edible products, it’s becoming a problem for employers to find employees that don’t use the drug, especially in states with full legalization.
Many people using cannabis in states where it’s legal assume they can arrive at work high, and their employer can do nothing to reprimand them. Since it’s so challenging to prove when a person last used the drug, there’s little employers can do to fire or discipline a blatantly high worker.
However, that’s not always the case. Some employers may have the right to a drug test and polygraph their staff if they think they’re high on the job. This post unpacks the legality and methodology behind polygraph exams and drug testing to oust employees who use cannabis on the job or arrive at work high.
The Legality of Marijuana Use in the Workplace – The State of the Nation
In some states in America, employment is still “at will,” meaning the employer can fire the employee without just cause for their decision. Businesses operating in the private sector in these states can fire employees for using cannabis on the job or arriving high at work, regardless of the state or Federal law surrounding the legality of cannabis use.
Some states across America also provide employers with “outs” for releasing employees they suspect or confirm use cannabis at work or arrive at work high. For instance, the Proposition 64 legislation in California, which legalized adult marijuana use, says that state employers can penalize employees who test positive for the drug.
It’s also important to note that cannabis is still illegal at a Federal level. So, employees working in Federal agencies, such as the FBI or US Justice Department, and those workers employed in Federally regulated industries, such as banking, transportation, and health care, are legally prohibited from using cannabis, even outside of work on their downtime.
Employers in the private sector should stay on top of changes in legislation in their state. This includes the laws surrounding cannabis use and drug testing. Companies operating in states where cannabis use is legal for medicinal or recreational purposes should consult with legal counsel before taking action against employees for cannabis use.
Notably, 10 states have “compassionate care” statutes allowing the medical use of cannabis. Under this law, employers cannot disqualify employees or candidates from work because they test positive for cannabis.
37 US states allow the use of medical or recreational (or both) cannabis. However, most of these states allow employers to fire employees or deny candidates a job for using marijuana in their downtime away from work.
As a result, advocates of cannabis legislation want the government to do more to protect workers’ rights with regard to cannabis use. These advocates note that employers using workplace drug tests cannot determine if the employee is high at the time of the test.
These proponents of cannabis legislation also state drug testing in the workplace is an equity issue since testing programs are more common in companies offering blue-collar jobs, disproportionately affecting POC workers.
As of 2023, 14 states, including Washington, DC, banned employers from discriminating against those workers who use medical cannabis to treat a diagnosed condition. New York and New Jersey prohibit employers from discriminating against their workers who use cannabis legally for medical or recreational purposes.
Nevada bans the refusal of employers to hire candidates that test positive for cannabis. However, it’s important to note there are exemptions to these laws for some industries and occupations.
The Legality of Marijuana Testing for Employees
Companies that employ regulated employees, such as school bus drivers and airline pilots, and Federal contractors must test their employees for cannabis use. Other employers have the choice of instituting testing policies or leaving them.
Some companies might decide to test their workers as part of their employment application, after an incident at work, or randomly if they suspect an employee is high at work. Most of the biggest employers in America currently have some form of drug testing program for employees.
According to research, around 75% of workplace drug tests are from pre-employment screening programs. The data suggest drug testing programs for employee or candidate cannabis use are becoming less common across all states. Similarly, the number of urinalysis screenings for workplace cannabis use declined by 5% between 2015 and 2020.
Most of the legislative arguments surrounding cannabis use in the workplace and drug testing experience challenges with how to measure cannabis intoxication and workplace safety. With the current state of affairs surrounding these issues, there seems to be no solution to the problem coming any time soon.
There is no breathalyzer test available for cannabis use and no legal limit set for “unsafe” levels of cannabinoids in a worker’s bloodstream. No current drug test can measure the impairment of a subject or their frequency of use of the drug.
Proponents of cannabis legalization point out that cannabinoids (the active compounds like THC found in marijuana) may linger in the bloodstream for weeks after a person uses cannabis. So, we can think of failing a marijuana drug test in the same context as being caught for a beer you had three weeks ago.
Understanding Medical Marijuana Use
39 states, including the District of Columbia, legalized the use of medical cannabis as of 2023. These states allow people to register as patients and receive a medical cannabis card, provided they receive a diagnosis from a qualifying medical professional who authorizes their treatment.
While medical cannabis is still illegal under Federal law, state law officials will not prosecute medical cannabis users. Over a dozen of these states—including Massachusetts, Illinois, Delaware, and Arizona, offer employee protections for the use of medical marijuana.
Employers operating in these states may not fire their employees or discriminate against cannabis if they’re legally registered medical cannabis users. The same applies to those employees who test positive for marijuana on a drug test. The state provides protection for these employees who use cannabis outside of work hours.
However, employers may fire these employees if they are under the influence of cannabis and impaired on the job. This legislation doesn’t prohibit employers from discriminating against medical cannabis patients when complying with Federal requirements, such as for a requirement of receiving Federal funding.
Other states with medical cannabis laws expressly allow employers to fire their employees for cannabis use outside of work, or the states don’t have any regulations addressing the issue. However, the courts will usually side with the employers in these cases.
The Rules Surrounding Improper Drug Testing of Employees
The legislation covered previously assumes the employee tests positive for cannabis in a legally administered drug test. If the test violates the law, the employer may not fire the employee based on the test results.
Federal law protects employees who take prescription medications to treat a disability, and many states have legislation covering how the employer can conduct a legal drug test. Typically, employers get more leeway in a candidate than employee testing.
Employers are usually free to drug test candidates routinely after making an offer of employment. However, some states do not allow employers to conduct random or routine testing of employees who already work for the company.
Instead, the employer requires a reason to test the employee, with the following providing legal grounds for administering the test.
An employee appears impaired at work.
The employee is involved in a workplace accident resulting in property damage or injury to others.
The employee returns to work after completing a rehab program.
The employee holds a position at the company that’s safety-sensitive.
Even if the employer has the legal right to drug test the employee, they must follow the proper protocol for administering the test. The following are some of the guidelines for legal drug testing by employers.
The employer must provide the candidate or employee with advanced notice of their intention to test them.
The company must use a state-certified lab for the test analysis.
The company must foot the testing costs.
The company must give the employee a chance to challenge the test results if they fail.
The company must administer the drug test in a manner that minimizes an intrusion on their privacy.
Can an Employer Request a Polygraph for Suspected Cannabis Use in the Workplace?
As mentioned, one of the issues with uncovering cannabis use in the workplace is that the drug test cannot pinpoint if the user is under the influence of marijuana or when they last used the drug. In this case, the polygraph can play a vital role in proving if the employee was using the drug at work.
By polygraphing the employee, the examiner can ask the employee if they’ve ever used cannabis at work or if they’ve ever arrived at work high. Suppose the polygraph corroborates the results of the drug test. In that case, the employer can argue that it proves grounds for dismissal, depending on the state laws surrounding cannabis use and employment law.
However, is it legal to polygraph an employee suspected of using cannabis in the workplace or arriving at work high on the drug?
Understanding the Employee Polygraph Protection Act
The “Employee Polygraph Protection Act of 1988” (EPPA) is blanket legislation protecting employees across America from employer abuse of polygraph policies in the workplace. The Act states that employers may not use polygraphs on candidates or employees in the hiring or firing process.
However, there are exemptions in this legislation. For instance, if the employer suspects drug use in the workplace or their employee is doing their job while high, they can institute a polygraph policy and test the employee.
Provided the employer consults with an attorney and uses an external polygraph company to conduct the test, they have the right to request their employees to take a polygraph exam. However, it’s important to note that the EPPA provides protection for the employee, even with the implementation of this exemption.
The EPPA states that the employee has the right to refuse to take the polygraph exam. If they do evoke this right to refusal, there is nothing the employer can do to take disciplinary action against them. They may not fire them, and they can’t reprimand the employee in any manner for refusing to take the test.
Can an Employer Use Polygraph Results as Grounds to Fire Me for Cannabis Use?
If the employee does consent to the test, which is highly improbable if they’re guilty of the violation, the employer can use a failed drug test result in corroboration with the failed polygraph result to provide grounds for dismissal of the employee. A failed polygraph result alone is insufficient grounds for dismissal, as it’s against the EPPA legislation.
What Happens if the Employer Violates the EPPA?
The US Labor Department enforces the EPPA, and they take it seriously. Suppose the employer violates the EPPA and polygraphs the employee without following the necessary procedures outlined in the Act. In that case, they face an investigation into the matter by the US Labor Department and stiff financial penalties if the investigation proves misconduct.
If employees feel their employer violated their rights, they can contact the US Labor Department directly to file a complaint against them. Alternatively, they can hire a lawyer to handle the filing and due process involved with the complaint.
For this reason, the employer must follow all EPPA guidelines when implementing a workplace polygraph policy. They must hire a competent and experienced labor attorney and a qualified, certified, and approved external polygraph firm to handle the test and assist with compiling and executing the polygraph policy.
Have you accused a colleague of sexual misconduct in the workplace? Or maybe someone in the office has gone to your boss and told her you were sexually harassing them? You might have to take a lie detector test to prove your side of the allegation.
Sexual harassment is a serious problem in the workplace. According to the EEOC, the results of a 2016 study show approximately 75% of people that experience sexual harassment in the workplace don’t bring the matter up to their boss, manager, or union representative.
The study shows that those employees who choose not to mention it do so because they fear retaliation from the other party at work. Another possibility for the failure to report the problem is that these individuals don’t have any idea about what qualifies as sexual harassment.
The #MeToo movement showed us that sexual harassment is not new in the workplace, with several high-profile cases involving the top ranks of society, including movie producers and even lawmakers engaging in the practice.
When people think of sexual harassment, they might consider outrageous sexual advances made by colleagues on each other. However, the reality is that harassment can occur in subtle forms. Sometimes something as blatant as getting slapped on the behind by a colleague as they walk past you isn’t the only form of harassment.
It could be something as innocuous as receiving late-night texts from someone at the office, invitations to sales meetings outside the office that somehow turns into a date, or unwanted sexually-charged comments.
In today’s digital environment, sexual harassment isn’t only a verbal engagement between people; it can occur through social media, text messages, emails, and other venues outside the office. This post looks into the types of sexual harassment and how your employer might institute a polygraph policy at work to get to the bottom of matters and prevent them from occurring.
What Is Workplace Sexual Harassment?
Title VII of the Civil Rights Act defines sexual harassment as an illegal practice inside and outside the office. Title VII applies to companies with 15 or more employees, outlining two types of unlawful sexual harassment.
The first is “Quid Pro Quo” sexual harassment. In this case, a supervisor at work or your boss might ask you for sexual favors. If you comply, they promise you a promotion or related action that advances your career. If you reject them, they might threaten to demote or fire you.
A hostile work environment involves subjecting an employee to unwelcome verbal or physical sexual conduct that alters the employee’s work experience and conditions or creates an abusive relationship for them in the workplace.
It’s fairly straightforward to define a quid pro quo sexual harassment case, but proving a hostile work environment can be much more challenging for the employee. So, what kind of behavior in the workplace constitutes sexual harassment?
What are the Types of Workplace Sexual Misconduct?
Some conduct in the workplace clearly qualifies as sexual harassment. For instance, unwanted touching of private areas like the breasts or genitals, kissing, and smacking the rear end. However, other forms are less obvious and more psychological than physical, such as making sexually explicit remarks, requesting sexual favors, sexually suggestive gestures, uninvited messages, ogling, catcalling, or cornering someone.
Overt forms of sexual harassment are the most common forms of the behavior, but instances of subtle advances are becoming more prevalent. We can consider any of the following as sexual harassment if they occur frequently or become severe enough to make the employee feel intimidates, uncomfortable, or distracts them from their productivity at work.
Repeated compliments on the employee’s physical appearance.
Commenting on an employee’s attractiveness in front of colleagues.
Discussing sex life or sexual actions in front of other employees.
Circulating images of nude men or women or porn in the workplace.
Making jokes with sexual innuendos.
Leaving an employee an unwanted gift.
Sending sexually suggestive emails or texts.
Spreading rumors of a sexual nature about other employees.
Repeated unwanted touching or hugs.
Employee conduct must be offensive to the employee and under reasonable circumstances that other people might find offensive to meet the criteria necessary to prove a hostile work environment.
For instance, a female employee might find it offensive that a male employee complimented her on her new haircut and opened the door from them as they left the office. However, the average person might not consider that sexual harassment, but rather more as the colleague being friendly or pleasant.
An Example of Sexual Misconduct in the Workplace
Kim is an executive assistant to the regional manager. Her boss, Clive, frequently asks her to go for dinner to discuss creating his schedule. He claims that they both have to eat, and by going to dinner, they can get more work done and free up their evening.
However, at dinner, the conversation turns from work-related matters to Kim’s dating history and her sexual preferences in bed. The following day, Kim notices Clive staring at her while she’s working, making her feel uncomfortable.
Clive starts sending Kim unwanted late-night texts saying he can’t stop thinking about her. He stops at her desk when no one else is around and tells her he doesn’t feel sexually fulfilled in his relationship with his wife.
Kim tells Clive his conduct is inappropriate and tries to leave the office, but Clive blocks the exit and says he just needs someone to help him through this rough patch in his relationship. Clive continues to escalate this behavior in the coming weeks, leaving Kim dreading going to work each day.
Other Issues Involving Sexual Harassment in the Workplace
Here are a few other facts about sexual harassment in the workplace and how it may create a hostile work environment for employees.
Sexual Harassment by Clients or Customers
While most employees are fully aware of what constitutes sexual harassment from colleagues and superiors at work, they don’t understand the same rules apply to the clients or customers that visit the business.
Title VII states that the employer has a duty to protect their employees from sexual harassment by people visiting the business premises. This includes clients, customers, business partners, vendors, and anyone related to business operations. If the employer is aware of the harassment, they must act to stop it.
Sexist Actions and Comments
Another misconception of workplace harassment is that it must be of a sexual nature. Title VII states that offensive conduct based on an employee’s gender and pervasive or severe enough to create a hostile or abusive work environment is illegal.
For instance, a workplace might qualify as hostile if management tells women working in the office that they must live up to gender stereotypes and be more feminine with how they dress and behave at work. Or it could be cases involving women being left out of important meetings or having their work sabotaged by male colleagues.
Sexual Harassment Covers All Genders
Most people assume sexual harassment can only happen to women, but that’s not the case. While cases involving men harassing women are the most prevalent, they can also occur the other way around. It also includes same-sex harassment, and the issue doesn’t have to be sexual in nature; it just needs to be based on the gender of the victim.
Understanding the Employee Polygraph Protection Act of 1988
In many cases of sexual harassment, the complaining party could be making a genuine claim, or they could be making up allegations against their colleague or superior to get them in trouble in the hope they lose their job. Unfortunately, the situation isn’t always black-and-white.
The last thing an employer wants to do is fire someone falsely accused of sexual harassment only to receive a massive lawsuit for the infringement. In this case, the employer can implement a polygraph policy to get to the bottom of the matter and see which party is telling the truth.
The “Employee Polygraph Protection Act of 1988” (EPPA) prevents private-sector companies from instituting a polygraph policy in the workplace, except under extenuating circumstances, such as sexual harassment. As a result, the employer is within their rights to implement a polygraph policy to investigate these matters.
Provided that the employer follows the guidelines set by the EPPA for implementing the polygraph policy, they are free to do so. However, it’s important to note that the employer may not force either employee to take the polygraph exam.
If one of the employees refuses to take the polygraph, they cannot bully them into taking it, fire, or reprimand them. Doing so would violate the EPPA. However, in this case, if one employee is willing to take the polygraph exam and the other refuses, it gives the employer a clear indication of who is telling the truth, and the employer can base their decision around this action.
However, they may not use the refusal as the grounds for their decision in any official capacity. Doing so would violate the terms of the EPPA and set the employer up for an investigation into the matter by the US Labor Department.
Structuring a Workplace Polygraph Policy for Sexual Misconduct
In private-sector industries that must adhere to the terms of the EPPA, the employer must take caution when setting up their workplace polygraph policy. The last thing they need is to fall foul of the EPPA.
To remain compliant with the EPPA, the employer must hire a qualified and experienced labor law attorney to assist them with navigating the process. They must also contract the services of an independent polygraph firm that appoints an examiner to assist with formulating the polygraph policy and carrying out the lie detector tests.
The examiner, attorney, and employer collaborate on setting up the polygraph policy and notifying the employees of their intention to polygraph them and their rights under the EPPA. For instance, the employer must give the employees advanced notice at least 48 hours before the exam.
They must call the employees into a private office individually to explain the terms of the polygraph and their rights, including their ability to refuse the exam. The employer must get the employees to sign documents ascertaining the nature of the polygraph, the employee’s consent to undergo the test, and the questions asked during the exam.
The employer must ensure the employees receive copies of all documents they sign. On the test day, the examiner must remind the employee of their rights and the questions they intend to ask during the lie detector test.
When the polygraph exam begins, the employee has the right to end the session whenever they please, and the employer or examiner may not stop them from doing so. Nor can the employer hold the employee in reprimand or fire them for refusing the test or cutting it short.
What Happens if the Employer Violates the EPPA?
If the employer fails to follow the guidelines of the EPPA when implementing their polygraph policy, the employee has legal recourse against them. The employee may file a complaint with the US Labor Department to investigate the employer’s use of the workplace polygraph policy and the test results.
The employee can choose to file this complaint themselves, or they can seek the assistance of legal counsel to help them navigate the process. The US Labor Department will investigate the matter. If they find the employer negligent in any manner, they’ll issue a stiff financial penalty.
Are Polygraph Results Admissible in Court?
Suppose the polygraph results find an employee guilty of sexually harassing another. In that case, the employer may not use the test results as grounds to fire the employee without corroborating evidence to support the claim. However, the employer may use the polygraph results in corroboration with other evidence to understand the guilty party in the claim and take action to neutralize the problem.
If the employer or employee goes to court over the matter, most states prevent the admission of polygraph results into evidence. States vary on the admissibility of polygraph results into evidence, with the presiding judge usually being the gatekeeper to accepting the results into evidence or not.
If you’re an employer, you might think you have the right to polygraph new employees or your staff. However, that’s not always the case. If you’re an employee, you need to know you’re right surrounding what your employer can ask of you concerning polygraph exams.
Administering or receiving polygraph exams is serious business. The outcome of a lie detector test can change a person’s life forever, especially if it’s an adverse result. So, employers must follow best practices when implementing polygraph policies in the workplace.
Employees must understand their rights and when they can refuse a polygraph or when they have to comply with the employer’s policy. Understanding the correct use of polygraph technology in the workplace ensures a safe, productive, and compliant workforce and a favorable employee experience.
The Employee Polygraph Protection Act of 1988 forms the basis and guidelines for implementing polygraph exams at work. Whether hiring new candidates or testing their current staff, they need to comply with this legislation.
Failing to adhere to the guidelines in The Employee Polygraph Protection Act (EPPA) can have severe penalties from the employer, resulting in huge financial damages that could ruin the company. This post unpacks the specifics of the EPPA and how it regulates polygraph policies in the workplace.
What Is the Employee Polygraph Protection Act of 1988?
On June 27, then-President, Ronald Reagan signed into power The Employee Polygraph Protection Act of 1988. The Act established the guidelines for administering polygraph exams in the workplace. Until this piece of legislation was signed into law, the use of polygraph exams had no restrictions or limitations on their use in the workplace.
As a result of this “wild west” approach to the use of polygraph technology, employers used it in the hiring and firing process in many unjust ways. For instance, if the employer did not like an employee’s personality, they could use a polygraph to fire them, removing them from the workforce.
Similarly, the employer could use the polygraph in the pre-employment screening process to weed out candidates they didn’t feel were a good fit. These practices were discriminatory, causing many people to lose jobs that didn’t deserve to do so.
Also, people who were unfairly discriminated against and fired or not hired would have a mark against their name after being fired for failing a polygraph, tarnishing their reputation in their industry. The EPPA introduced restrictions on using polygraph technology in the workplace, intending to end these discriminatory practices.
The Department of Labor enforces the EPPA, governing the use of polygraphs in the workplace. Typically, it’s unlawful for employers to polygraph their employees or use it in pre-employment screening.
However, there are exemptions to these basic rules, depending on circumstances and the industry or sector in question. The EPPA also covers similar devices, such as Computer Voice Stress Analyzer (CVSA) tech, “deceptographs,” or other mechanical devices used in the diagnosis and evaluation of deceptive or dishonest behavior in the workplace.
Who Does the Employee Polygraph Protection Act Affect?
The Employee Polygraph Protection Act came into law to protect employees in the private sector. Large organizations in the public sector don’t have to comply with the provisions of the Act. Local, state, and federal government agencies don’t have to comply with the legislation due to the sensitivity of the information handled by the employees.
These exemptions apply to police departments, prison systems, school districts, and other institutions involved in national security. The employees of these organizations are trusted with sensitive information or the humane care of others. Therefore, the Act doesn’t cover them for pre-employment or employee screening.
Employer Exemptions to the Employee Polygraph Protection Act of 1988
Employers instituting a polygraph policy with their staff have restrictions on its use in the workplace, as stipulated by the EPPA. However, this doesn’t mean that employers in the private sector can’t use polygraphs. There are several exemptions for its use in the workplace.
For instance, the primary goal of the EPPA is to restrict the use of polygraph technology in the pre-employment screening process and for examining employees. However, companies involved in manufacturing and distributing pharmaceuticals may implement a polygraph policy for pre-employment screening and for employees on the job.
It makes sense why the Act would not apply to this kind of company. If an addict were to get a job in the company, they might use their position to steal drugs for their habit or sell them to dealers that put the drugs on the street.
The exemptions on using a polygraph policy in the workplace apply to many other private sector organizations with similar functions. The Act doesn’t apply to companies involved in hiring armored car personnel, security personnel, power plant employees, nuclear facility workers, toxic waste disposal, or other jobs with a significant impact on the safety or health of communities across the country.
Organizations in the private sector, like the NSA, FBI, CIA, DOD, and Border Patrol, all use polygraphs to pre-screen employees and those on the job. These organizations handle state secrets and security, making honesty and trustworthiness vital to all employees in this sector.
What Criteria Must an Employer Meet in Implementing Polygraph Testing?
An employer may also institute polygraph testing in the private sector under certain conditions, making them exempt from coverage of the Act. For instance, if an employer experiences a theft and suspects employee involvement, they have a right to polygraph the staff they assume might be involved with it.
This rule also applies to financial companies where employee embezzlement may be suspected. Employers can also implement a polygraph policy in situations where a staff member accuses another of sexual misconduct or if they suspect drug abuse in the workplace.
Employers should review the following checklist before implementing a polygraph policy in the workplace.
Employer Polygraph Checklist
The polygraph must occur as part of an ongoing investigation into a crime, such as theft.
The polygraph may be implemented if the company faces economic loss.
The employer must understand the rules of the Employer Polygraph Protection Act.
The employer must serve the employee with a document explaining the reasons for the polygraph.
This document must be signed by an individual legally authorized to represent the employee. This person must be employed by the employer for at least three years and may not be the examiner.
The party must read aloud the Notice to Examinee to the employee. The document must be signed, witnessed, and dated.
The employer must serve the employee a minimum notice period of 48 hours before the stated exam time.
The employer must provide the employee with documented notice of the time, date, and location of the polygraph examination and directions to the exam location.
The employer must hold a statement of adverse actions against the employee after the polygraph exam.
The employer must conduct additional interviews with the employee before taking adverse action after the polygraph exam.
The employer must retain all related documents to the polygraph exam for a minimum of three years.
Employees cannot waive their rights against refusing to take the polygraph or other civil liberties.
Law enforcement and investigators cannot share the polygraph results.
Violation of the EPPA results in a $10,000 penalty for each employee.
The employer must verify the credentials of the polygraph examiner, including documentation of licensing, liability insurance, etc.
The employer must use a company letterhead on all forms provided to employees.
A corporate attorney must review actions and assure compliance with the EPPA.
Polygraph Examiner Checklist
The polygraph examiner also has a set of duties to the employer and employee. They must ensure they comply with these duties or risk severe penalties.
The examiner must provide the employer with photocopies of the EPPA guidelines.
The examiner cannot assist employers in determining the employees to be tested.
The examiner must ensure a signed statement of advance notice is given to the employee.
The examiner must give the employee written clarification of the polygraph exam and its procedures. The employee must sign and date the document.
The examiner must read aloud the EPPA and answer all questions the employee may have regarding the polygraph exam. They must ensure the employee signs and dates this document.
The examiner must advise the employee of the use of one-way mirrors, taping, and video recording of the exam.
The examiner must have a minimum of $50,000 in liability coverage.
The examiner may conduct a maximum of five exams per day.
The examiner may not conduct exams with time limits under 90 minutes.
The examiner must give the employee the exam questions in writing.
The examinee must write their answers and sign and date the question sheet.
The examiner must be licensed to operate in the state where they carry out the exam.
The examiner must log the organization’s name, the employee’s name, and the time and date of all polygraph exams conducted.
The examiner must divulge the test results to the employee and give them the opportunity to explain their reactions to questions and reasons for failure where applicable.
The examiner must provide their opinion of captive or non-deceptive behavior in writing.
Results must not be based on the employee’s behavior but polygraph exam results.
The examiner must provide relevant information about the purpose and intent of the exam to the employer.
The examiner must keep copies of all related documents for a minimum of three years.
The examiner must provide the employee a photocopy of all documents upon their request.
The examiner must provide a photocopy of documents to the employer if the results are deceptive.
The examiner must provide the Department of Labor with these copies within 72 hours at the request of the Secretary of the Department of Labor or an authorized person from the Department of Labor.
What are the Restrictions and Prohibitions on the Use of Polygraph Exams in the Workplace?
Employers may not request, suggest, or require employees or candidates to take a polygraph exam. Additionally, the employer cannot inquire about exam results.
Employers cannot threaten, promote, discriminate, or discipline employees if they refuse to take the exam. Similarly, the employer may not deny employment, discharge, or threaten any action against an employee or candidate.
Filing Complaints Against an Employer or Examiner
If an employee feels the employer has violated their right in terms of the EPPA, they must file a complaint within 45 days of taking the exam. The basis of the complaint must be in one of the following categories.
Color.
Race.
Sex.
National origin.
Age.
Religion.
Mental or physical disability.
Employees can file complaints with the EEO counselor for the employees’ or candidates’ agency. The candidate or employee can file a formal complaint within 15 days of receiving notice of their right to file a complaint if they cannot informally resolve it.
Under the Age Discrimination in Employment Act of 1967, complaints against federal departments or agencies must be filed with the director of equal employment opportunity, the head of an Equal Employment Opportunity Commission (EEOC) field office, another official, or the head of that agency.
Federal employees may skip this requirement by notifying the EEOC within 180 days of the date of discrimination, and wait 30 days before they file a lawsuit.
What are the Rights of the Candidate or Employee Undertaking a Polygraph?
Despite protection from the Act, many employees fear retaliation from their employer if they come forward about their rights or discrimination against them through polygraph policies in the workplace. The EEOC is cracking down on instances of this phenomenon.
Employer retaliation may vary from unlawful discharge or intimidation in the workplace. This intimidation may cause an employee to quit their position due to a reduced quality of the employee experience to intolerable levels.
If the employee proves these charges, they are entitled to punitive and compensatory damages against their employer. The Equal Employment Opportunity Commission (EEOC) guidance has a zero-tolerance approach to handling instances of employer retaliation.
The EEOC uses a broad interpretation of this type of discrimination. Since 2009, retaliation charges displaced instances of racial discrimination in these cases as the leading cause for employees filing against their employer. Now, over 40% of private-sector complaints involve retaliation claims. This figure is double the previous guidance issued by the EEOC in 1998.
Are you scheduled to take a lie detector test at work? It’s an unnerving experience when your boss tells you he plans to test the staff. However, if you have nothing to hide, you have nothing to worry about. The polygraph exam is remarkably accurate, and it can tell between someone anxious and someone being deceptive with their answers.
That said, there are strategies you can take to prevent an inaccurate result. Keeping your head about you the day before the test and the day of the exam helps you retain your sanity and live your life without anxiety ruining your day.
Here are the dos and don’ts of taking a lie detector test.
The Dos of Taking Lie Detector Tests
Do Prepare for Your Polygraph Exam
It’s fine to prepare yourself for the exam. Doing so removes your anxiety around the lie detector test and its outcome. Adopting strategies to help keep yourself calm is a great way to prevent tension from flaring your fight-or-flight response during the questioning process, ensuring accuracy with the test results.
Do Research the Polygraph Exam
Your preparation should include research into how the lie detector test works. Study how the instrumentation, software, and examiner look for deceptive behavior in examinees. Learn how the fight-or-flight response activates in the body, its impact on the polygraph device, and the examiner’s interpretation of this feedback.
The examiner prefers you do this before the test. By increasing your knowledge of the polygraph device and the exam process, you remove the uncertainty surrounding the fear of the unknown. This fear is the primary activator of the fight-or-flight response. So, by learning more about it, you do yourself and the examiner a favor.
Do Understand Your Rights
The Employee Polygraph Protection Act of 1988 (EPPA) offers employees protection from their employers’ abuse of polygraph policies. All employers and polygraph examiners must abide by the guidelines set in the EPPA when implementing polygraph policy in the workplace.
For instance, your employer must give you advanced notice of the test at least 48 hours before the exam date. You have a right to refuse to take the exam, and there’s nothing your boss can do to intimidate you into taking the test. They also can’t fire you if you refuse their request.
The EPPA protects you from your employer abusing their authority and governs what the examiner can and can’t do or ask you during the exam. If the examiner or employer violates the EPPA legislation, you have a right to pursue legal action against them with the assistance of an attorney.
Do Ask the Examiner Questions
If you have questions and concerns regarding the polygraph exam, ask the examiner about them. They have a duty to fully inform you about everything concerning the polygraph process and how it pertains to the EPPA.
The examiner’s goal, other than the task of running the exam, is to make you feel comfortable taking the test. They know that answering your questions dampens your anxiety, improving the accuracy of the exam results.
The examiner expects everyone that walks into the exam room to feel nervous. They have experience assisting examinees with entering a calm and relaxed state to take the lie detector test. If you have any anxiety issues during the polygraph, tell your examiner. They don’t have a right to keep you in the room, and you can leave whenever you want, with no repercussions from your employer.
Do Follow Your Regular Routine
Stick to your normal routine the day before and the day of the polygraph exam. Breaking your routine primes the sympathetic nervous system to activate the fight-or-flight (FoF) response. The FoF is what the examiner uses to assess you for deceptive behavior. If you break the routine, you’ll feel more nervous than you should when entering the exam room.
Have your morning shower, get your workout in, and enjoy your morning cup of coffee. Do everything you normally would on an ordinary day, and you’ll prepare yourself for the events to come. The human mind thrives off routine, and routine breeds stability in our mental state; straying from it builds anxiety.
Do Eat Properly
Have your evening meal the night before the exam and focus on foods with healthy fats and protein; avoid carbs. Carbs play havoc with your blood glucose levels, making you feel sluggish and unresponsive. Do the same in the morning; if you eat breakfast, have some eggs and toast rather than a bowl of sugary cereal.
The sugar in the cereal will make you crash and feel weak and sluggish halfway through the morning. You’ll likely have to compensate for this effect by loading up on coffee, which isn’t a great idea – but we’ll discuss that a bit later in this post.
Do Drink Water
Stay hydrated the day before the test and on the morning of the exam. Hydration plays a key role in circulation and moving nutrients through the body. Ensure you sip on water throughout the morning and take a hydration product like Liquid IV to give your body the essential minerals it needs to remain adequately hydrated.
If you experience dehydration, it’s going to affect your nervous system. Your brain starts to think you’re entering survival mode, priming the sympathetic nervous system and FoF response. As a result, you’ll feel more anxious because your body is desperate for water, which might affect your exam room performance.
Do Get a Good Night’s Sleep
Get a good night’s sleep. Sleep is essential for productivity and optimal brain function. When we sleep, the brain goes into recovery mode. It clears the neural pathways of toxins built up during the day, helping us think clearly the following morning. If you don’t sleep well, you’ll feel hazy and tired.
When you’re in this mental state, your level of awareness drops. As a result, the sympathetic nervous system primes the FoF response to ensure that you have energy and awareness for the task and are ready to respond to threats – like the polygraph exam.
Do Meditate and Breathe
If you’re having trouble falling asleep, don’t worry, that’s a natural response. Clear your mind by taking a hot bath and meditating. If you don’t have any experience with meditation practices, complete a guided breathing meditation.
You can find plenty of these videos on YouTube for free. Download one and listen to it on your phone while in bed. You’ll find it helps you clear your mind and fall asleep fast. Keep the meditation and repeat it the following day before your test to calm you.
The Don’ts of Taking Lie Detector Tests
Don’t Panic
When we have a fear of the unknown, it causes us to panic. If you have an anxiety disorder, the news of having to take the lie detector test is enough to put you on edge. As you get closer to the exam date, you’ll feel these emotions of uncertainty and anxiety reach a fever pitch.
When you step into the exam room, your sympathetic nervous system will be ready to launch the FoF at the slightest indication of a threat – like the examiner asking you a question. As a result, you might end up creating an emotional and physiological state the examiner misinterprets for deception.
Don’t panic. Breathe. Remember, it’s all about preparing properly for the exam. When you have the right preparation, you won’t have a problem in the exam room, and you’ll get through the lie detector test without any issues.
Don’t Act Irrationally
The polygraph examiner is a professional. They spend up to seven years qualifying for their job. They treat you with the utmost respect during the test, and you should do the same to them. Don’t see the examiner as your enemy – they’re here to help you.
As mentioned, one of the primary roles of the examiner is to help you manage your mental state in preparation for the exam and during the process. Treating them with disrespect is uncalled for and a red flag that you might be hiding something from them.
When you enter the exam room, the examiner will greet you, and you should do the same. Adopt and friendly attitude and remain professional. You can expect them to act accordingly.
Don’t Use Anxiety Medication
It might be tempting to relieve your anxiety through the use of medication like Xanax. Xanax and beta-blockers dampen the nervous system response, reducing the feeling of dread. As a result, some people use these drugs because they believe they can help them pass the test when they lie.
However, avoid this practice if you don’t have a prescription for the medication. Using anti-anxiety drugs and beta blockers before the exam is a “countermeasure.” If the examiner discovers you’re using this medication, they’ll confront you about it.
If you don’t have a prescription and don’t inform the examiner of your physician’s recommendations before the exam, the examiner sees this as deceptive behavior. Using a countermeasure qualifies as an immediate failure of your test, so avoid it.
Don’t Use Sleep Medication
The same principle applies to sleeping medication or supplements the night before the exam. Many people find it challenging to get to sleep when they’re in a stressed state of mind. You have all kinds of thoughts and concerns running through your mind, and this overthinking might keep you awake.
However, don’t resort to using your friends, parents, or partners’ sleeping meds. Drugs like Ambien will help you fall asleep, but you’ll find you’ll wake in the morning feeling sluggish and tired. The same applies to supplements like melatonin. If you have no experience with it, it causes the same simp[toms as Ambien and sleep meds, resulting in a hazy mental state.
Additionally, using sleep meds without a prescription technically means you’re misusing prescription substances, and that could be one of the test questions in the exam room. Stay away from these sleep assistants and use the meditation strategy mentioned earlier instead.
Don’t Drink too Much Caffeine
The caffeine in coffee, tea, and energy drinks is a nervous system stimulant. It ramps up nervous system response, and drinking too much of it places the sympathetic nervous system and the FoF on red alert. As a result, you’ll feel jittery and anxious, and you’re just a question away from activating the FoF, producing a false positive on your polygraph exam.
Many people who can’t fall asleep the night before the test compensate for their dreary state the following morning by consuming caffeine. However, it’s a mistake you want to avoid. If you’re feeling tired, it’s a better idea to eat an apple. Nutritional science shows that the enzymes and nutrients in apples do as good a job at waking you up as caffeine.
Stay away from the extra coffee and stay hydrated. You’ll find the sleepiness clears in a few hours, and you won’t have to worry about your nervous system feeling on edge.
Don’t Overcomplicate Your Answers
The polygraph exam involves a series of around five questions. You’ll answer the examiner using yes-or-no answers. Don’t expand on your answers unless the examiner asks you to do so. If you start responding with a long paragraph, the examiner views this as erratic behavior.
They may assume you’re using a countermeasure or manipulation tactics to try and be deliberately deceptive. The examiner will only ask you to expand on your answer if they detect what they think might be possible deception. In this case, they’re likely to say something like, “I notice that you seem nervous when you answer this question. Do you have any idea why? Do you feel somehow responsible for this?”
Don’t Ask the Examiner for Your Results
When you finish your polygraph exam, the examiner will thank you for your time and ask you to leave the room. Don’t ask them for your results because, in most instances, they won’t have their conclusion yet. The examiner takes the test data back to their office and reviews it before making their decision.
They’ll call your employer and send a report on the exam a few days later. Your employer can’t share this report with anyone, so don’t worry about it. The examiner keeps all the data on file securely, so there’s no need to worry about it falling into other people’s hands.
The Employee Polygraph Protection Act of 1988 (EPPA) provides legislation surrounding the roll-out and execution of polygraph policies in private sector workplaces. It’s a complex law, with certain loopholes allowing employers to implement polygraph exams in specific situations.
However, the employer must comply with the law when instituting polygraph exams for their employees. Failing to adhere to the EPPA places the employer at risk of financial liability if the employee files a complaint against them for violating the terms of the Act.
There are specific reasons involved in the Act and in the policies of polygraph examination companies that may disqualify employees from taking a polygraph test. Depending on their nature, these disqualification criteria may benefit the employer or the employee.
This post unpacks why employees may be disqualified from participating in polygraph exams and the consequences of these criteria and decisions.
Why Would Employees Be Disqualified from Taking a Polygraph Exam?
Several criteria may disqualify employees from participating in a polygraph exam. They originate from both employer and employee requirements for the execution of the lie detector test in the workplace.
Let’s review these disqualification criteria from both angles.
Disqualifications Due to Employer & Examiner Incompetence
As mentioned, criteria disqualifying the employee from taking the polygraph exam come from both the employer and employee sides of the equation. The employer has specific duties to the employee that they must adhere to when notifying them of their intention to polygraph them.
If the employer or examiner doesn’t meet these obligations, it disqualifies the employee from participating in the lie detector test. Here are some of the disqualifying criteria that may cause such an issue.
Failing to Adhere to the EPPA
The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation signed into power by Ronal Reagan during his administration of the United States. It covers a set of criteria private sector employers must meet in order to roll out a polygraph policy in the workplace.
The EPPA aims to prevent employers from misusing lie detector tests in the workplace to favor them during the employee hiring and firing processes. If the employer doesn’t adhere to the EPPA when planning and executing the polygraph policy, it disqualifies the employee’s need to participate in the exam and its results.
If the employer doesn’t comply with all the terms mentioned in the EPPA, they violate the Act. As a result, they disqualify the test results and place the organization at risk of sustaining financial liability at the hands of the US Labor Department, which enforces the law.
Private Sector Applications Outside the EPPA
The EPPA states the terms and conditions where the employer may lawfully use a polygraph policy in the hiring and firing process. The EPPA strictly forbids employers from using polygraphs in the pre-employment screening when interviewing candidates.
However, there are some exceptions to the EPPA in these processes. For instance, if the employer’s business involves pharmaceutical manufacturing or distribution, high-value asset transport or safeguarding, or security, they may institute a polygraph policy in the pre-employment screening.
However, if the employer doesn’t fall into one of these exempted industries, it disqualifies them from using a polygraph policy. They may not use lie detector tests in the pre-employment screening process or in the random testing of their employees.
Not Enough Lead Time
The terms of the EPPA stipulate that the employer must give the employee sufficient notice of their intention to polygraph them. Typically, the minimum timeframe between notification and execution of the lie detector test is 48 hours.
If the employer fails to notify the employee of the lie detector exam within this minimum period, it disqualifies the employee from participating in the lie detector test. Forcing an employee to undergo the exam without sufficient notice places the employer in violation of the EPPA.
Incorrect Explanation of Your Rights
When the employer notifies the employee of their intention to polygraph them, the employer must explain the employees’ rights regarding their obligations to participate in the test. The EPPA has a set of criteria the employer must meet to institute a workplace policy and the rights afforded to employees in the process.
The employer must call the employee into their office for a private meeting. During the meeting, the employer must clearly explain the employee’s rights regarding the polygraph policy. Failure to clearly define the rights or omitting rights from the explanation constitutes a violation of the EPPA. As a result, the employee is disqualified from taking the lie detector test.
Failing to Sign or Receive Documents
While explaining the rights to the employee, the employer must provide proof they did so. The polygraph examiner will arrange paperwork explaining these rights and outlining the process of the polygraph policy. The employer must ensure the employee signs all the relevant documents to be in compliance with the EPPA.
The employer must also issue the employee with a copy of this signed paperwork to remain in compliance with the EPPA. Failing to get the employee to sign the documents or failing to distribute copies of these documents to the employee disqualifies them from participating in the lie detector test.
No Question Prep
During the pre-exam preparation process, the polygraph examiner must give the employee a list of the questions they’ll have to answer during the polygraph exam. The examiner must stick to these questions during the lie detector test, and the questions may not intrude on the employee’s personal life. Failing to adhere to these questions during the test is a violation of the EPPA.
If the employee is not made aware of the questions before the exam date, it disqualifies them from taking the lie detector test. The employer works with the examiner to ensure the questions asked during the exam are pertinent to the reason for implementing the polygraph policy. Failing to properly prepare the employee with the queries results in disqualification from participation in the lie detector test.
Employee Disqualifiers
While the onus of responsibility primarily lies with the employer for correctly outlining the terms and conditions of the polygraph policy, the employee also has certain criteria they must meet to participate in the lie detector test. If they breach these criteria, it disqualifies them from participating in the lie detector test.
The disqualifying criteria prevent the employee from undertaking the lie detector test.
Employee Tardiness
As mentioned, the employer must ensure they adhere to the requirements of the EPPA when administering the polygraph exam. However, the employee must also meet obligations if they choose to participate in the process. The examiner gives the employer a specific date and time for the exam during the preparation process.
Sometimes, the examiner will arrange the lie detector test at an external venue away from the employer’s office. This practice usually occurs when the employer doesn’t have suitable facilities to conduct the test. For instance, the employer might only have a shop front, a break room, and a stock room at their business. As a result, there is no suitable environment to conduct the test.
If the employee shows up late for the test, the examiner may choose to disqualify them from participating. In this case, it is not the examiner’s fault for the employee’s tardiness, and the polygraph company may bill the employer for the wasted time.
Medical Conditions
Medical Conditions That Can Affect Polygraph Test Results
A polygraph test, commonly known as a lie detector test, measures physiological changes in an individual to determine if they are being deceitful. However, certain medical conditions can interfere with the readings, leading to potential false positives or negatives. Here are some conditions that might affect the outcomes:
Hypertension: Elevated blood pressure can impact the readings of a polygraph. Medications taken for hypertension can lower blood pressure and slow heart rate, potentially resulting in a false negative for a guilty person.
Mental Illnesses:
Anxiety: Anxiety can make a person feel constantly on edge, possibly skewing the polygraph results. Anti-anxiety medications can cause complete relaxation, leading to potential false negatives.
Depression: This condition can cause low blood pressure, heart, and respiratory rates. Antidepressants, such as Valium, Xanax, Prozac, and Lithium, can interfere with polygraph readings.
Severe Mental Health Issues: Conditions like psychopathy, antisocial personality disorder, and schizophrenia can make it hard for the polygraph to detect deceit due to the person’s belief in their own lies.
Diabetes: Diabetes affects the resting heart rate and heart rate variability. Uncontrolled diabetes can also interfere with sweat gland functioning, another metric monitored in a polygraph.
Autonomic Nervous System Disorder: Since the autonomic nervous system controls most of the physiological processes monitored by a polygraph, any disorder can result in inconclusive or false results.
Rheumatoid Arthritis: This autoimmune disease can impact both the blood pressure and heart rate, leading to potential inconclusive or false polygraph outcomes.
Respiratory Issues: Diseases like asthma, emphysema, and chronic bronchitis can affect the breathing rate, impacting the polygraph’s accuracy. Medications for these conditions can also influence physiological responses.
Insomnia: Lack of sleep can affect various physiological processes, making the polygraph results unreliable.
Alcoholism: Alcohol, being a central nervous system depressant, can hamper problem-solving, judgment, and concentration. Chronic alcoholism might lead to long-term physiological changes that interfere with a polygraph.
If an individual suffers from any of the conditions mentioned above, it’s essential to notify the examiner before the test. This will ensure a more accurate reading, reducing the chance of false results. Always remember that while polygraph tests can be a useful tool, they are not infallible and should be used in conjunction with other evidence and considerations.
The polygraph exam is a stressful experience. While the examiner must make the employee feel at ease with the process, they may be unable to do so with all examinees. Some employees may suffer from anxiety disorders. As a result, they find themselves triggered in highly stressful environments, such as polygraph exams.
If the employee has a medical diagnosis of their condition from a doctor, it disqualifies them from participating in the lie detector test. These individuals may experience a strong fight-or-flight response in the exam room that initiates a panic attack. As a result, the polygraph test might constitute a threat to their health.
The employer must respect the employee’s condition, and provide an exemption for the employee, provided the employee can provide written proof from a medical professional that they suffer from their stated condition. In this case, forcing the employee to take the polygraph exam would constitute a violation of the EPPA.
Non-Medical Conditions and Behaviors
After being notified of their polygraph exams, employees have a right to ask the examiner and employer questions surrounding the lie detector test to familiarize themselves with the process. This action reduces pre-exam anxiety surrounding the exam, reducing the chance of the polygraph machine inducing a false positive result.
However, some employees may research the use of “countermeasures” for the exam. They may visit websites and online forums discussing ways to “beat” the polygraph exam. While these countermeasures were effective in the past, the modern polygraph machine can detect if the examinee is using these countermeasures during the test.
If the examiner discovers the employee researched countermeasures, they may disqualify the employee from participating in the test. It’s common for examiners to open proceedings asking the employee if they investigated the polygraph exam and if they studied any countermeasures or plan to use them during the test.
Using Unauthorized Medications
It’s common for examinees who investigate countermeasures to attempt to suppress the nervous system response and the fight-or-flight mechanism through the use of drug-based countermeasures. Beta-blockers and anti-anxiety medications, like Xanax, dampen the fight-or-flight response in the examinee.
However, the sophisticated polygraph technology used by examiners and the examiner’s experience can detect if the examinee is using these medications in an attempt to deceive the test. If the examiner discovers the use of these medications, it disqualifies the employee from continuing with the polygraph exam.
Some employees with anxiety disorders may need to remain medicated to cope with their lives. If that’s the case, these employees have the choice of participating in the exam. The examinee also has the option to disqualify the employee from participating in the lie detector test.
You Have the Right to Refuse a Polygraph Exam
Employees have the right to refuse their employer’s request to participate in a lie detector test. Employers may not enforce a polygraph policy on employees if they deny their request. The employer may also not use this denial of their request to affect the employee’s workplace experience.
That means that the employer may not fire or reprimand the employee in any capacity if they refuse the test or are disqualified from participating. If the employer decides to make the workplace environment uncomfortable for the employee because they refuse to participate in the polygraph, they violate the EPPA.
The employee has the right to seek legal counsel to assist them with filing the violation with the US Labor Department. The Labor Department takes these filings very seriously and will appoint a representative to investigate the matter.
If found in violation of the EPPA, the employer will have to pay the penalty for each instance. So, if the US Labor department finds ten cases of employers violating the act with ten employees, they will have to pay ten fines, ranging up to as much as $50,000 per violation.
This financial penalty places the employer’s business at risk, and they may have to file for bankruptcy due to the financial obligation. Therefore, the employer must consult an attorney and an accredited polygraph company when designing and implementing their polygraph policy.
What are the Consequences of Polygraph Test Disqualifications?
For Employers
Unfortunately for employers, the consequences of disqualification from polygraph exams are more costly for employers than employees. If the employer violates the EPPA, they’re at risk of an investigation by the US Labor Department. As mentioned, the consequences of violating the EPPA can come with huge financial liability for the employer.
For Employees
There are no consequences for the employee if they experience disqualification from the polygraph exam. The employer has no legal recourse against them and cannot threaten, intimidate, reprimand, or fire the employee. The EPPA heavily weights protection in the employee’s favor when the employer institutes a polygraph policy.
Are you scheduled to take a lie detector test? Your employer wants to test the entire staff about a recent inventory theft, and you feel nervous. You weren’t responsible for the theft and had no involvement, but you can’t help but feel anxious about taking the polygraph.
What happens if your boss finds out about your oxycontin addiction you had ten years ago? Will they hold that against you? The thought of being ousted as a former addict makes you feel nervous. Should you consider lying on the test to cover it up? What happens if you fail the lie detector exam?
Can you lose your job for a failed result? How would a failed polygraph test look to another employer if you have to get back on the job hunt? These questions make you feel like you have a panic attack coming on, and you don’t know what to do about it.
Relax, it’s not as bad as you think. This post unpacks everything you need to know about your rights to take a polygraph in the workplace. We’ll cover the procedure your employer must follow and what happens to you if you get a failed result.
Understanding the EPPA
Ronald Reagan, the 40th president of the United States, signed “The Employee Polygraph Protection Act of 1988” (EPPA) into power as one of his final duties in the office. At the time, the polygraph exam was frequently used by employers in pre-employment and employee screening.
The polygraph was an effective tool, but many employers used it maliciously in their hiring and firing practices. For instance, if an employer had a prejudice against a specific ethnicity, they could use the polygraph result as an excuse to prevent hiring these candidates.
The EPPA sought to bring an end to these injustices in the workplace. The legislation introduced a set of rules employers had to follow when instituting a polygraph policy in the workplace. It severely limited the ability of employers to use polygraphs on their staff or prospective hires.
The EPPA effectively banned the use of polygraphs in these employment practices, with a few exceptions. For instance, industries involved in security, high-value asset transport, or pharmaceutical manufacturing and distribution could still use a polygraph policy in their HR practices.
The legislation banned the use of polygraphs in other sectors, with a few exceptions. For instance, if the employer experiences a theft resulting in an economic loss to the company that jeopardizes its finances, they have a right to implement a polygraph policy to test the staff and uncover the culprit.
Other exemptions exist, such as using a polygraph on staff members accusing each other of sexual misconduct. These exemptions make the workplace safer and assist employers with better HR practices to safeguard their people.
What Are My Rights When Agreeing to a Polygraph?
Fortunately, for most occupations in the private sector, the EPPA affords candidates and employees a good level of protection against polygraph policies. The employer may no longer use it in pre-employment screening or random or specific employee testing unless the reasons for doing so fall within the EPPA legislation.
Even if the employer announces a polygraph policy to their team, the employees have a right to refuse to take the test. They can choose to not take the polygraph without fear of losing their job or being intimidated by the employer.
The employer must also comply with all regulations and legislation surrounding the EPPA when testing their staff. For example, the employer must notify the employee of their intention to screening them at least 48 hours in advance.
To ensure they remain compliant with the EPPA, the employer must hire an attorney experienced with handling the specifics of the EPPA. Should they violate the EPPA, the employer exposes themselves to legal action by the employee.
The US Labor Department enforces the EPPA in the private sector, and the employee has a right to pursue justice against the employer within the boundaries of an investigation into the matter by the US Labor Department.
If the employer is found in violation of the EPPA, they risk massive fines that could fold their company. So, the employer will ensure they don’t pressure the employee into taking the test. They can’t bully or coerce them to do so in any manner and can’t make the employee feel uncomfortable in the workplace if they choose not to participate in the employer’s polygraph policy.
What Is the Purpose of Polygraph Exams in the Workplace?
The purpose of implementing a polygraph policy in the workplace is to uncover employees violating company policy. For instance, cases of theft, fraud, and sexual harassment give the employer grounds to implement a polygraph policy on their employees, provided they remain compliant with the EPPA.
The employer will hire an external polygraph company to perform the lie detector test. They may not use internal departments like HR to carry out the test. As mentioned, the employer must hire an attorney to comply with all aspects of the EPPA and the polygraph policy.
The polygraph examiner meets with the company and the attorney to ensure the employer complies. The examiner also assists with drawing up the employee questionnaire and answering any questions related to the polygraph procedure.
Implementing a workplace polygraph procedure has several benefits for the employer. It acts as a preventative measure against employee misconduct. For instance, if a potential thief starts at a jewelry company with the intention to steal inventory, they’re less likely to take the position if they discover the employer uses a polygraph policy in the event of a theft.
It’s important to note the difference in instances where employees could use a polygraph to test their staff. For example, the EPPA allows employers to test their staff if they experience a severe economic loss. So, if a thief takes $50,000 worth of inventory, the employer may use the exemption in the EPPA to test their team.
However, if someone takes an office chair home and doesn’t admit to it, the employer can’t implement a polygraph policy because it doesn’t present a financial calamity to the organization.
How Do Companies Implement a Polygraph Policy in the Workplace?
As mentioned, the company must use an external polygraph company to test their staff. They must also seek legal advice from an attorney for carrying it out. After completing the requirements for notifying their team about the polygraph policy, the employer may not use the pending polygraph to intimidate their employees.
The polygraph examiner conducts the test at the employer’s premises or at the polygraph company’s designated testing site. The employer may not be present in the exam room during the test, but they may watch through a 2-way mirror if the employee consents to them doing so.
The polygraph examiner will conduct the test, return to their office and review footage from the exam to decide whether the employee passes or fails the exam. The examiner will notify the employer, not the examinee, about the test results.
What are the Consequences of Failing a Pre-Employment Polygraph?
If you’re a candidate facing a polygraph as part of the pre-employment process, you have a right to refuse to take it. The prospective employer cannot use your denial of their request as grounds to stop them from hiring you.
However, this is somewhat of a grey area. If the employer operates in one of the exempted areas, they may use your refusal of a polygraph to deny your employment application. If you accept the employer’s request, undergo the polygraph exam, and fail, the employer may not reveal the results of the polygraph to a future employer.
The employer has no record of your test; only the polygraph examiner may keep these records. The examiner is also bound by the confines of the EPPA to ensure your results are private and confidential.
What are the Consequences of Failing a Polygraph for Employees?
Employees who are requested to take a polygraph due to random or specific testing programs at their workplace also have the right to refuse their employer’s request. The employer may not use their denial request to fire or discipline them. Doing so would be a violation of the EPPA.
If the employee submits to the employer’s request and fails their polygraph exam, the employer cannot use these results to fire or discipline them. According to the EPPA and the Justice Department, polygraph results are only admissible in court if they corroborate other evidence.
However, the employer may use the polygraph to confirm their suspicions. For instance, if they suspect the inventory manager of stealing inventory and a polygraph confirms these suspicions, they can use that information to contact law enforcement and start an investigation against them.
As with the candidate screening process, employers may not divulge the results of the polygraph to anyone at the company other than management directly involved with the employee. Similarly, they may not disclose test results to prospective employers.
So, if the employee fails the polygraph and leaves the company voluntarily, their new employer might call into their old job for a reference. The ex-employer may not divulge the polygraph results to the new employer.
Your Right to Challenge Polygraph Exam Results
Employees that fail a polygraph exam with their employer have a right to protest the results. For instance, if the employee fails the test and feels the results are inaccurate or they were having a bad day when the test happened, they can challenge the employer using legal frameworks.
The employee can hire a legal counsel to assist them with filing a complaint with the US Labor Department regarding their employer’s use of the polygraph policy. The US Labor Department will investigate the case, and the employer must prove that their polygraph policy complies with the EPPA.
If they violate the Act, the US Labor Department will file a lawsuit against the employer for their transgression. Fines for violating the EPPA are very steep. So, employers must ensure they do everything in their power to remain compliant.
Overcoming the Consequences of Failing a Lie Detector Test
If you fail a polygraph exam, it’s not the end of the world or your career. If you failed, the chances are that it wasn’t because you stole the inventory. Usually, it’s because you’re overly nervous on the test day, and your reactions to the examiners’ questions made you nervous, resulting in a failed exam.
However, if you are guilty of what the employer suspects, they probably have a good idea it was you already. They are simply using the polygraph as a means of confirming their suspicion. If that’s the case, you can expect the employer to continue their pursuit against you, possibly involving law enforcement in their actions.
The polygraph examiner is a well-trained and experienced professional. They can tell the difference between someone feeling nervous and being deceptive in their answers.
So, if you have a history of drug abuse in your past, it’s best to admit to it upfront. You’ll tell the examiner your past and find they don’t hold it against you or your polygraph. It would be different if you were a current addict because it would show the motive of why you would steal from the company.
However, if your addiction was years in the past and you’ve recovered, they won’t hold it against you in the exam results. Despite this, many employees may lie in the moment because they don’t want their boss or the examiner to know the details of their former addiction.
As a result, they fail the test when the examiner asks them if they’ve used illegal drugs, and they respond with no. The polygraph machine detects the deception and notes it. The examiner will press you on the subject, and you can come clean about it.
If you continue to lie, the examiner will notice it, and you’ll fail the test. It’s better to be open and honest about it rather than to lie as a means of self-preservation.
Pre-employment polygraph exams are a tool used by certain sectors to ensure the integrity and reliability of potential employees, especially in roles where security and trust are paramount. Industries such as security companies, pharmaceutical sales or transportation, power generating companies, law enforcement, and other government agencies often resort to these measures to safeguard their operations. However, the use of such exams is tightly regulated under the Employee Polygraph Protection Act of 1988 (EPPA) in the United States, with specific criteria that must be met to ensure legal compliance and to avoid severe penalties.
Understanding the Employee Polygraph Protection Act of 1988
The EPPA sets forth clear guidelines for when and how an employer can request an employee or a job candidate to undergo a polygraph test. It’s crucial for employers to adhere to these guidelines meticulously to ensure the legality of the polygraph examination process.
Key Considerations for Legally Conducting Polygraph Exams
Employer Eligibility: Not all employers are permitted to request polygraph exams. The law specifies that only certain employers, like those in the sectors mentioned above, may consider polygraph testing, and even then, under strict conditions.
Specific Loss Requirement: An employer must have suffered a specific and identifiable economic loss, such as theft or embezzlement, where the employee in question had access or responsibility.
Employee Access and Suspicion: The employee to be tested must have had access to the property or information lost and must be reasonably suspected of involvement. This suspicion must be based on tangible evidence rather than mere speculation.
State Law Compliance: Employers must also ensure that their request for a polygraph test does not violate state laws, which may have stricter regulations than federal laws.
The Process of Requesting a Polygraph Exam
Establishing a Basis: Before scheduling a polygraph exam, an employer must identify a specific loss and have reasonable suspicion pointing towards the involvement of the employee(s) in question.
Written Request: The employer must formally request the employee to take the exam in writing, clarifying that the test is voluntary and detailing the incident under investigation.
Scheduling the Exam: Upon meeting all preliminary requirements, the employer can then proceed to schedule the polygraph exam with a qualified examiner.
Employee Rights: Employees must be informed that they cannot be forced to take the exam, and refusal to participate cannot be the sole reason for adverse employment actions such as termination or demotion.
Compliance and Consequences
Employers who wish to utilize polygraph testing must be diligent in their adherence to the EPPA’s provisions. The act mandates that employers retain all related documentation for a minimum of three years post-exam. Violating the EPPA can result in significant legal repercussions, including fines and compensatory damages to affected employees.
For industries where trust and security are non-negotiable, pre-employment polygraph exams can be a valuable part of the vetting process. However, it’s paramount that these exams are conducted within the legal framework provided by the EPPA to protect both the employer and the employee’s rights. Employers uncertain about their compliance should consult legal expertise to navigate the complexities of the EPPA and ensure that their pre-employment screening practices are both effective and lawful.
In the realm of lie detection and polygraph testing, the Specific Loss Exam stands out for its focused approach, offering a precise tool for investigators and employers to address particular incidents of concern. Unlike broader polygraph tests that span multiple issues or general character assessments, the Specific Loss Exam zeros in on a singular event or issue, such as theft, fraud, misconduct, or any specific incident where veracity is in question. This specialized examination can play a crucial role in resolving disputes, clarifying incidents, and aiding in decision-making processes.
The Essence of Specific Loss Exams
The Specific Loss Exam is designed to determine an individual’s truthfulness regarding their involvement or knowledge about a defined incident. This pinpointed approach ensures that the questions are highly relevant and tailored to the situation at hand, thereby maximizing the reliability of the responses. The exam typically includes a series of questions directly related to the incident, along with control questions to establish a baseline for the individual’s physiological responses.
Application and Utility
Specific Loss Exams are invaluable in a variety of settings. In the corporate world, they may be employed to investigate instances of employee theft, embezzlement, or breaches of confidentiality. Law enforcement agencies might use them to narrow down suspects in a crime or to verify the accounts of witnesses or victims. Even in personal disputes or claims, such an exam can shed light on the facts, contributing to resolution and justice.
The Procedure
A Specific Loss Exam follows a structured procedure, beginning with a pre-test interview where the examiner explains the process and establishes a rapport with the examinee. During this phase, the examiner will also gather background information relevant to the specific incident. The main test phase involves asking the carefully crafted questions while monitoring the examinee’s physiological responses, such as heart rate, blood pressure, respiratory rate, and skin conductivity. These responses are analyzed to determine indications of truthfulness or deception.
Ethical and Legal Considerations
The use of Specific Loss Exams, like all polygraph tests, is subject to ethical and legal guidelines. In some jurisdictions, there may be restrictions on their use, particularly in employment settings. The Employee Polygraph Protection Act of 1988, for example, largely prohibits private employers in the United States from using lie detector tests, including for specific loss inquiries, with some exceptions. It’s crucial for those considering a Specific Loss Exam to understand the legal framework and to conduct the test in a manner that respects the rights and dignity of all involved.
Conclusion
The Specific Loss Exam represents a powerful tool in the arsenal of investigative and decision-making processes, providing a focused method for assessing truthfulness regarding specific incidents. When conducted ethically, legally, and by skilled professionals, these exams can offer valuable insights and aid in resolving complex issues. However, it’s essential to approach them with a clear understanding of their capabilities, limitations, and the legal context in which they are used.
Workplace polygraph policies have several benefits for employers and their teams. However, they also come with drawbacks to implementing them. If you’re an employer weighing up the advantages and disadvantages of adding this procedure to your business practices, you must consider both the pros and cons of making this decision.
There’s a significant difference between instituting polygraphs in the public and private sectors. Public sector organizations, such as those involved in the justice system and intelligence or defense communities, don’t have any restrictions on how they implement polygraph policies for candidates and employees.
However, it’s different for private-sector organizations. Laws dictate how employers may use this technology in hiring and firing processes. This post examines these discrepancies in the law. We’ll focus on the private sector to give employers an unbiased view of the pros and cons of implementing polygraphs in the workplace.
Understanding the EPPA
Let’s start with the law. President Ronald Reagan signed “The Employee Polygraph Protection Act” (EPPA) into power in 1988. The purpose of the Act was to prevent employer misuse of polygraph technology in hiring and firing practices.
When used ethically, the polygraph provides private-sector employers several benefits for their business. However, employers took advantage of polygraphs in the 1960s, 70s, and 80s, mostly for unethical reasons.
They would use the technology to separate desirable and undesirable candidates based on ethnicity, race, and performance. As a result, the Reagan administration decided the EPPA was the best safeguard against employers abusing polygraph policies.
The Act prevented private sector employers from using polygraphs on their candidates in the pre-employment screening process and in random or specific testing of employees without cause to do so. Some private-sector industries, such as those involved in pharmaceuticals, security, and other high-risk industries, remained exempt from the law. However, by in large, the practice was outlawed.
The EPPA does make provision for private sector employers to use polygraph policies in specific testing of employees with cause, provided they remain within the boundaries of the legislation. So, the employer must have good reason to do so and hire an attorney to guide them through the process, along with an independent, external polygraph firm to conduct the testing.
What are the Pros of Implementing a Polygraph Policy in the Workplace?
Keep Bad Actors Out of the Organization
The primary benefit of implementing a polygraph policy in private sector applications is to root out bad actors in the organization or prevent hiring these individuals. For instance, in pharmaceutical manufacturing and distribution companies, pre-screening of candidates is permissible. The EPPA makes provision for this due to the sensitivity of these positions.
For instance, these companies wouldn’t want to hire addicts or individuals from organized crime. They might end up stealing from the company or arranging robberies. Other companies may use polygraphs in specific testing programs if they discover undesirable behavior placing their business and staff at risk.
Stop Theft
Private sector employers may conduct polygraph exams on their employees if they experience a theft presenting a significant loss to the organization. For instance, an inventory theft might damage the company’s bottom line, jeopardizing the organization’s finances.
For instance, an employer running a jewelry business may notify new hires they may be subject to a polygraph exam if the company experiences an inventory theft. This procedure would be in line with EPPA standards. As a result, they might root out undesirables in the hiring process that intend to plan a robbery.
Prevent Sexual Harassment
Employers may institute a specific polygraph exam in the workplace if a colleague accuses another of sexual harassment. These claims present a significant risk to the business, implying that the company fosters a culture of harassment if they don’t take action to solve the issue. However, human beings are flawed, and the accuser or the accused may lie about their involvement.
By instituting a polygraph policy to resolve the problem, the employer can determine which party is telling the truth and correctly judge the situation. Suppose the employer notifies candidates that they are subject to polygraphs when filing complaints about these issues. In that case, they are less likely to experience employee manipulation of the situation and foster a better culture of honesty and integrity in the company.
Uncover Drug Use
The employer may use a polygraph policy in the workplace to test staff they suspect of using or selling drugs in the workplace. Drug use dampens employee productivity and could spread through the company’s culture. Drug addicts working in organizations may plan crimes, such as fraud or robberies, to find the means to support their habit.
By mentioning to candidates that they will be subject to polygraph testing if suspected of drug activity, the employer prevents addicts or dealers from entering their organization. The addict might move on the find another company where they can continue their behavior without the threat of a polygraph discovering them.
Discourage Fraud
Companies in the financial sector may institute polygraph policies if they uncover fraud in the organization. For instance, they suspect an accountant, trader, or account manager of committing such a crime.
By mentioning to candidates that they are subject to polygraphs in the wake of fraud suspicion, they stop these bad actors from entering the company. Or they might prevent the employee from being tempted to commit fraud after being hired.
Build a Culture of Trust
Overall, implementing a polygraph policy in the workplace builds a culture of trust. Employees know they work with team members with high moral and ethical standards. So, they can relax knowing the company, their job, and their colleagues are safe from the criminal manipulation of bad actors.
What are the Cons of Implementing a Polygraph Policy in the Workplace?
Open the Doors for Manipulation
Despite the EPPA outlining the process of implementing polygraph policies, some employers use them in unfair hiring and firing practices. For instance, the employer could use the pre-employment screening polygraph to avoid hiring individuals they view as undesirable due to ethnicity or race.
While the polygraph examiner might follow the EPPA and remain impartial, the employer can use the process to deny hiring employees they view as undesirable. They are not obligated to reveal the proof of the test results to the candidate unless the candidate files a formal complaint with the US Labor Department.
Since this process requires the candidate to hire an attorney to navigate proceedings, they will likely wait to follow up on it. They would rather move on to another job interview than pursue the employer.
Create Uncertainty in the Workforce
Instituting a polygraph policy involving pre-employment screening and random or specific testing in the workplace may do the opposite of creating a culture of trust in the company. Employees may feel nervous about taking these tests if the employer fails to execute the policy properly.
As a result, the employees work in an environment of fear. They might view their company as more of an authority than a partner they can trust with their career. This environment of uncertainty can affect productivity, employee reliability, and commitment to the company.
Exposure to Financial Liability
The employer needs competent advice from their attorney or polygraph partner when setting up the polygraph policy, or they expose their organization to risk. If the employer doesn’t follow the guidelines of the EPPA, the employee has legal recourse against them.
The employee may hire an attorney and use counsel to file a complaint against the employer for unethical use of a polygraph policy. The attorney files this complaint with the US Labor Department, and they will launch an investigation into the matter.
If the Labor Department investigation reveals the employer or examiner acted unlawfully, the employer is at financial risk. The Labor Department may fine the employer a substantial amount for each violation of the EPPA. If the company is short on financial resources and cash flow, it might find itself in a position where it must declare bankruptcy.
Reputational Ruin
Employers that unjustly or unfairly execute polygraph policies in the workplace may ruin their reputation in the employment market. Words spread through social media sites like LinkedIn that the employer unjustly uses polygraphs for whatever reason.
As a result, the employer may find it hard to onboard high-quality employees. These individuals may fear job security at the company and choose to work for competitors offering a more favorable employee experience.
Additional Operating Costs
Implementing a polygraph policy is expensive. The employer must hire legal counsel to guide them through the process and an independent, external polygraph firm to conduct the exams. The costs add to the company’s operating expenses and employee costs.
As a result, the employer may experience a significant reduction in margins and profitability. Shareholders may complain about falling profits, and management may risk experiencing reshuffles due to these financial issues.
Not Admissible in Court
Polygraph results are only admissible in court if they corroborate other evidence collected in the case. So, for instance, if the polygraph exams suggest that a specific employee is responsible for an inventory theft, the employer can do nothing to use this evidence as legal proof in a court of law against the employee.
Non-Enforceable in the Workplace
While polygraph exams are effective, the results are not enforceable. For instance, if the employer does discover the employee responsible for their inventory theft, there is little they can do to use the results to reprimand or fire the employee. The employer may not use a failed test result to harass or intimidate the employee.
The employer may not use the test results to create an inhospitable work environment for the employee. If they do so, they expose themselves to violating the EPPA legislation and legal liability.
How to Successfully Implement a Polygraph Policy in the Workplace
There is a lot of ground to cover for private-sector employers that wish to implement a polygraph policy in the workplace. They must ensure they meet the demands of the EPPA and remain compliant with the legislation if they want to avoid violations and lawsuits.
However, with the right advice and assistance, an employer can implement the polygraph policy effectively.
Understand the Law
The employer must meet all requirements of the EPPA before implementing their workplace polygraph policy. This requires legal assistance from a qualified attorney specializing in labor law. The employer must hire this professional at their own cost and use them to assist with navigating the process.
The attorney collaborates with the polygraph examiner to construct the polygraph policy while remaining within the confines of the EPPA. The attorney also assists the employer with any employee disputes and claims of violations of the EPPA.
The lawyer will also assist the employer with handling any investigations led by the US Labor department into the ethical rollout and use of the workplace polygraph policy.
Work with Certified Polygraph Professionals
The employer must ensure they choose the right partner company to execute the polygraph policy. They must hire a company certified and approved by the American Polygraph Association (APA) to carry out the exams and launch the specifics of the polygraph policy.
The examiners conducting the lie detector tests must have full certification and licensing from the APA and be qualified to perform the exams. The examiner works with the employer’s attorney to set up the polygraph policy and execute it effectively while remaining in the confines of the EPPA.
Inform Your Team
The employer and the polygraph examiner must roll out the polygraph policy to employees while adhering to EPPA legislation. The employer must explain why they choose to use the polygraph exams and the benefits to both the organization and the team for doing so.
It’s up to the employer and the examiner to ensure the team understands everything they need to know about the polygraph exam, how it works, and the consequences of the results. By being transparent with the team, the employer ensures the company builds a community of trust and not fear in the workforce.
Did your employer call a meeting and say she’s sending the entire office for a polygraph test? Is that even legal? Can your employer demand you take a polygraph? What if you refuse? Will it cost you your job? What are the ramifications and consequences of refusing or failing a polygraph exam at work?
The thought of taking a polygraph is unsettling enough, but fear compounds when we think about these questions. What are your employee rights, and can your employer bully you into taking a polygraph exam? After all, you’ve done nothing wrong, and the outcome of the lie detector test could damage your career and livelihood if it goes wrong.
This post looks at employees’ rights against employers instituting polygraph policies in the workplace. We’ll unpack a scenario looking at why an employer would want their staff to take a polygraph when it’s legal for them to do so and how that impacts your status as an employee of a company using polygraph testing in the workplace.
Understanding the Importance of Lie Detector Tests in the Workplace
The polygraph exam might seem like an intimidating process to the employee. Most employees are scared of taking the test, even if they’ve done nothing wrong; why is that? Well, as human beings, we all have something to hide. Maybe you were involved in crime in your teenage years but rehabilitated yourself.
Or maybe you had a drug problem a decade ago. You’re clean now and worried about how your past behavior could affect your boss’s decision to keep you on if they discover your secret through the polygraph test.
While we all have something to hide, even if it’s something as innocent as your decision to be a furry on the weekends. However, when we couple that with a fear of the unknown, things can swing wildly out of control, cascading into anxiety and flat-out panic.
People fear what they don’t understand. For instance, you visit a zoo with a snake exhibition displayed for visitors. You repulse at the thought of seeing a snake up close; these animals put the fear of God in you.
As you notice a handler working with a reticulated python, you wonder how they dare to handle the animal. You imagine how its slimy skin feels on your hands and the potential for the animal to turn around and strike at any moment, sinking its fangs into your skin and muscle.
However, your partner walks straight to the handler and asks them if they can touch the animal. To our surprise, the handler says sure, and your partner strokes its scales. They invite you over, and after much pestering, you reluctantly touch the animal’s skin.
To your surprise, it feels soft and warm, unlike the slimy mess you expected. The handler informs you that the animal is docile, and you don’t have to worry about it biting you. To your surprise, the snake turns to greet your and slithers onto your arm, resting its head in the crook of your elbow.
It appears relaxed and stares off into the distance, not paying you a second thought. That’s a huge difference from what you expected, and suddenly, you wonder why you were so afraid of these animals, to begin with?
It was the fear of the unknown. When you gain experience and knowledge about something that intimidates you in life, that fear melts away.
It’s the same for polygraph tests. The average employee has no idea what to expect in the exam, and they panic about the examiner asking them questions to which they don’t want to reveal the answers. The reality is the examiner doesn’t care about your history or your personal habits; they only ask simple questions relating to your behavior at work.
Why Do Employers Use Lie Detector Tests?
Employers use polygraph exams as part of the pre-employment screening process to determine if the candidate is the right fit for the company and the risk they may present to the organization after they’re hired.
The employer also uses the polygraph to test employees for situations like thefts at the company where the workforce is suspected of committing the crime. Or they could use it if they suspect someone in the office is using or selling drugs at work or in instances of sexual harassment or misconduct allegations between staff members.
The polygraph[h results help the employer confirm their suspicions about candidates or employees, giving them the footing needed to start legal proceedings against declining to hire a candidate or removing the employee from the organization.
While polygraph exam results are not admissible in court, they can assist the employer with the discovery processes involved in hiring and firing.
Understanding the EPPA – Employee Rights and Protections
The reality is your employer does have the right to use a polygraph in the workplace, provided they comply with specific guidelines on its use. Polygraphs don’t have the same widespread application in the workplace as they did in the past due to “The Employee Polygraph Protection Act of 1988” (EPPA).
During the early days of polygraph technology, several complaints were launched about the accuracy and efficacy of polygraph results and the ability of the device to detect deception. The uproar surrounding the technology led to Ronald Reagan signing the EPPA into power near the end of his term as president.
The EPPA changed how employers could use polygraph exams in the workplace. Essentially, the legislation banned the use of lie detector tests, except in extenuating circumstances. The goal of the Act was to prevent the employer from leveraging the polygraph results to avoid hiring candidates from specific demographics they had personal disagreements with or from firing employees they weren’t happy with within their company.
All it took was a failed polygraph exam or just instituting the exam to give the employer the leverage they needed to prevent hiring the candidate or firing the employee. The EPPA sought to stop this behavior, and it was successful at doing so.
What Is the Legal Framework for Lie Detector Tests?
The EPPA states that employers may not use polygraph exams or pre-employment screening processes in the workplace. However, there are certain instances where the legislation does allow employers to implement a polygraph policy.
For example, if the company works in pharmaceutical manufacturing or distribution, it can implement a polygraph policy in on-the-job testing and pre-employment screening processes. The reasons for these exemptions are apparent.
For instance, if a drug addict were to gain access to the employer’s drug stockpile, they may use it to further their habit or possibly steal drugs to sell them to the black market. These exemptions to the EPPA also apply to industries like security, high-value asset transport, and many others.
However, the employer must meet specific guidelines for implementing their polygraph policy. For instance, they must hire an attorney qualified to handle these issues and work with an external polygraph company not controlled by their business.
The employer must prepare their workforce or candidates for the polygraph exam, giving them advanced notice of the test and the questions asked in the exam process. They must also collect paperwork from the employee notifying them of the test and their agreement to take the polygraph.
If the employer fails to comply with these regulations, they expose themselves to violation and action from the US Labor Department. Typically, violating the Act means the employer must pay huge fines for each instance of infringement they make against their employees.
Can Employees Refuse to Take a Lie Detector Test?
Employers have the right to ask their employees to take a polygraph exam, but employees can decline this request. If you don’t feel like complying with your boss’s polygraph policy, or you’re a candidate looking for a job, the employer may not enforce the polygraph policy on you.
If you decline the employer’s request to take a polygraph exam, they may not use your decision against you. That means they can’t fire you and are not permitted to take disciplinary action against you or use it as grounds to prevent hiring you.
The employer may also not use your decision against taking the polygraph to make your life uncomfortable in the workplace. Should they violate these conditions of the EPPA, you have a case against them and can seek legal action against the employer through the US Labor Department.
Employee Confidentiality and Privacy Considerations
If you comply with the polygraph policy and take the exam, the employer may not share your test outcome with anyone. The polygraph examiner gives the employer the test results, and they keep records. However, the polygraph examiner may not share these results, or they risk losing their license.
The employer may not share the polygraph exam results with other employees. In some cases, they may notify members of management about the results if the outcome of the test impacts the employee and managerial roles in the company.
Under no circumstances may the employer share the polygraph results with prospective employers. For instance, you fail the polygraph and decide to leave the company. In this instance, the employer may not share your exam results with a prospective employer calling your old boss for a reference.
Violating these privacy conditions of the EPPA exposes the employer to legal liability, and the employee may take legal action against them.
An Example of How Employers Implement a Polygraph Policy
So, how would an employer launch a polygraph policy in the workplace? Let’s look at an example. Let’s say you work in a company transporting cell phones from a distribution warehouse to retail stores. Each shipment of phones is worth several hundred thousand dollars, especially during a new iPhone release.
One of the trucks is hit by a gang of armed criminals, and the stock is stolen. The company faces a huge economic loss that may jeopardize its operations and business continuance. Your boss gets word from sources that the robbery was an inside job, and they should suspect the security team.
In this case, the employer has the right to implement a polygraph policy against the security team. They also get word of possible involvement by the accounting department and logistics team in the caper. The boss decides to polygraph the entire office because they suspect mass involvement from different departments in their organization.
They start the process by contacting their lawyer regarding the roll-out of the polygraph exam to the staff. The lawyer advises them on the correct procedure and how to execute the polygraph policy within the confines of the EPPA.
The boss then contacts an external polygraph company to execute the tests. They appoint a polygraph examiner to the company, and the examiner arrives at the organization. The examiner’s role is to ensure the company complies with the EPPA.
They unpack the situation and reasons for testing the staff. The examiner collaborates with the employer to develop a questioning script. Some examples of valid questions to ask during the exam would be the following.
Have you ever stolen from an employer?
Have you ever lied to your employer?
Do you have any outstanding debts you can’t manage?
Have you used illegal drugs in the last 18 months?
Are you part of the cartel that robbed the company?
The examiner may only ask the employee questions relating to their possible involvement in the crime. They use a yes-or-no questioning format and only ask the examinee to expand on their answer if they suspect they’re being deceptive.
The examiner may not ask the employee personal questions about their life and what they do in their spare time. They are not concerned if you stole a candy bar when you were a kid or if you drink too much in your spare time; that’s your business.
As an employee, you have the right to decline the polygraph, and you have the right to stop the polygraph exam at any point where you don’t feel like participating in the process.
Provided employers meet the required criteria, they can issue a polygraph policy in the workplace. However, it must comply with all aspects involving the legislation surrounding the EPPA.
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.
Does refusing a polygraph test make me look guilty?
Refusing a polygraph test can raise questions or suspicions from others, but it doesn’t necessarily mean you are guilty. Polygraph tests, commonly known as lie detector tests, are not infallible and their results are not always admissible in court due to their potential for inaccuracies. People might refuse a polygraph test for various reasons, including anxiety, discomfort with the process, or skepticism about the test’s reliability.
It’s important to remember that everyone has the right to refuse a polygraph test, especially in legal contexts. The decision to take or refuse the test should be made based on personal comfort, legal advice, and the specific circumstances of the situation. While some might interpret refusal as an indication of guilt, others may understand it as a precautionary measure or a defense of one’s rights.
Can an Employer Watch the Lie Detector Exam through a 2-Way Mirror?
Let’s run through a scenario. You’re a business owner running an operation where you sell gold and silver coins to the retail market. A few months ago, your logistics manager told you they were short a tube of ten gold American Eagles from your inventory stocktake assessment.
They inform you they’re confident it’s not a theft, just a misplacement of the coins between the sales department and your logistics team. After nearly three months of running recons, they can’t find the bullion.
No one in your company decided to hand in their resignation, and the team remains intact, but the coins are still missing. What do you do as a business owner? It’s clear to you there could be foul play underfoot, and someone in the sales or logistics department may have stolen the coins for some reason.
We’re talking about a serious theft here. That’s close to $20,000 in inventory that’s unrecoverable at this point. After consulting with your attorney, they recommend using a polygraph to interview the team and uncover the thief.
The Employee Polygraph Protection Act and How it Relates to Monitoring Polygraphs
Can you polygraph your employees? Is that legal? The last thing you need is for your employees to launch a lawsuit against you for unfair practices in the workplace. You’re already down twenty grand, and the thought of losing a couple hundred thousand through lawsuit settlements seems even more unsettling.
As a high-value company processing sales of gold and silver coins, you have the right to polygraph your team. Your attorney walks you through “The Employee Polygraph Protection Act” of 1988, explaining your rights as an employer when instituting a polygraph policy at your company.
The Employee Polygraph Protection Act of 1988, also known as the “EPPA,” clearly outlines employer and employee rights when working with lie detector tests. You see, the conflict around polygraphs started in the late seventies after a series of wrongful convictions from using this technology in the workplace stirred controversy in the industry.
As a result, the US government instituted the EPPA to protect employees from their employers’ wrongful use of polygraphs. Generally, employers may not use polygraph policies in their pre-employment screening process, nor can they use them to interview current employees.
However, there are loopholes in the EPPA specifying the lawful use of polygraph examinations in the workplace. If the scenario complies with the legislation, employers have the right to polygraph their employees if they follow the correct procedure.
In your case, your business handles high-value assets, and there’s a financial risk to your business if you can’t recover the missing coins. Your attorney recommends an approved polygraph company for handling the interviews.
After contacting the company, they insist you have the right to interview your staff. They also assure you they have all the required waivers and paperwork to carry out the polygraph policy legally.
Can Employers Use 2-Way Mirrors in Lie Detector Tests?
After notifying your team they’re undergoing polygraphs to clear them for possible theft, you notice changes in their behavior. Through your CCTV installation in the office, you see two of your sales team members talking with each other more than usual.
This behavior is suspicious to you, and you immediately feel your internal radar activated, suspecting them of the crime. However, you need solid proof to confirm your suspicions. The activity between the two suspects continues over the next two days, and you become more entrenched in your belief they’re the pair responsible for the alleged theft.
The polygraph company notifies you they’ll be conducting the exam at their facility, just a short drive from your office. You’ve seen polygraphs instituted before on TV shows and in movies, and you notice that in some of these instances, the detective monitoring the case watches the polygraph exam through a 2-way mirror.
As the company’s leader, you wonder if you can do the same. You feel that if you watch the two suspects during their polygraph interview through a 2-way mirror, you’ll catch onto their body language and potentially get the visual cues you need to confirm your suspicions.
Can you watch the interview through a 2-way mirror? Is that legal? You call your attorney to find out if it’s possible.
What are the Legal Issues Surrounding Employer Observation of Lie Detector Tests?
Your attorney notifies you that you have the right to watch the interview through the 2-way mirror. However, the interviewee must consent to you doing so. He informs you that the polygraph company will have a waiver for authorizing this process.
The attorney informs you that the employees have the right to refuse this request. The 2-way mirror brings another element of uncertainty into the polygraph process and may make employees uncomfortable during the exam.
A polygraph test is a serious situation. It’s an emotionally draining experience for the employees, who have the right to refuse your request. However, it won’t look good for them if they choose to decline your request to watch the interview. What are they trying to hide? Or are they just feeling nervous?
What are the Employee Privacy Rights when Taking a Polygraph?
Employees have a right to protect their privacy during a polygraph exam. The examiner asks them a series of questions, and they reply with yes or no answers. The questioning process involves the examiner asking sensitive questions relating to the employee’s behavior on the job and outside of work.
For instance, they might ask them if they have any outstanding debts they can’t service. Or they may enquire if they have a drug problem or have used illegal drugs in the past. Your employee might not want you to know about these behaviors because you might judge their answers in a negative light.
So, the employee has the right to refuse you access to monitoring the polygraph session. As an employer, you must comply with that request. You also can’t hold it against them if they make that decision. That means you can’t use this refusal as grounds for disciplinary action or dismissal.
However, the polygraph team informs you that you have the right to ask the employees if you can minor the session through a 2-way mirror. They begin to prepare the waiver for the employees. They notify them of your request and run through the questions they’ll ask the employees during their polygraph session.
The Impact of Observation on Polygraph Results
The polygraph examiner also notifies you of the possible outcomes of wanting to monitor the session. They tell you that your request might affect the exam’s result. A polygraph exam is an incredibly stressful experience.
During the process, the examinee’s (employee in this case) central nervous system is on high alert. When we experience stressful situations, it activates the autonomous nervous system to signal the sympathetic nervous system’s “fight-or-flight” response.
Fight-or-flight is the name given to the biological process involving the sympathetic nervous system preparing the body for action. In the past, this response would occur when stalked by predators.
The pupils dilate, allowing more light into the eyes to get a better view of your surroundings. The respiration rate increases, and the skin begins to sweat. These physiological reactions prepare us for dealing with a threat, such as a big cat stalking and attacking us for its next meal.
The same thing happens in a polygraph exam. The examiner’s equipment and software monitor these changes, assessing them as natural reactions or deceptive behavior. If the employee does show signs of deception when answering a specific question, the examiner presses the issue, repeating the question.
So, if you decide to monitor the session through a 2-way mirror, it introduces another stressor. The employee knows you’re watching them, and they might feel a heightened fight-or-flight response, causing them to fail the polygraph exam, even though they’re innocent.
You must decide if that’s what you want in the polygraph session. Does it really make a difference if you observe the session through a 2-way mirror? If the polygraph examiner manages to uncover employee deception without you there, it’s still the same outcome for the test as if you watched it. In fact, it might be more beneficial to the process if you didn’t watch it.
Your polygraph team notifies you of these issues before making your decision on whether to monitor the test or not.
Employer Best Practices for Conducting and Monitoring Polygraphs
As an employer, you have a right to polygraph your team in this case, and you have the right to monitor the session if you see fit. However, you have to follow best practices and legislation governing the process.
Even if the polygraph uncovers that the two salespeople you suspected of stealing did, in fact, take the coins, you can’t use these results to fire them. Polygraph results are not deemed definitive by the courts due to their history of inaccuracy.
While polygraph technology has come a long way in the last 30 years since the introduction of the EPPA, it’s still not allowed to use the results as a basis for dismissal. However, should they fail, it gives you more information about what happened to the coins.
You’ll know they stole them, but you have no legal right to take action. However, you can use this information to launch a legal law enforcement investigation into their suspected behavior. You decide to leave out the option of watching the interview through a two-way mirror in favor of getting a more accurate test result.
During the interview, the two suspected salespeople failed on the questions “have you ever stolen from an employer?” and “Did you steal the ten gold coins from the business?” There’s clear deception indicated through the test results, and the polygraph examiner notifies you of such in their pre-exam report.
Your attorney advises you to ask law enforcement to begin an investigation on the pair, and they do so. After investigating their financial records, a month later, the police uncovered that they had sold the ten gold coins to a precious metals broker in another county, just outside the city.
With your suspicions confirmed, you fire the employees and launch a criminal case against them under the advice of your attorney.
The Outcomes
There’s very little value to using a 2-way mirror in the polygraph process, but you have the right to request it. Provided you follow legal procedure and complete the processes required to monitor the session, there’s nothing the employees or their legal team can do to sue you for your actions.
That’s why employers must take legal advice before implementing a polygraph policy in the workplace. It’s also why it’s so important for you to work with a competent and experienced polygraph company.
With the right legal advice and procedures, you can polygraph employees and monitor the session without experiencing backlash from lawsuits launched against you by your employees. However, the polygraph is not a definitive means of identifying the suspected employees as thieves; it’s just a way to confirm your suspicions.
Watching the polygraph session through a two-way mirror doesn’t present much value to the process. While it may soothe your need to control the process, it may detract from its efficacy. In most cases, it’s best to leave it up to the examiner to make the judgment call on whether they identify deceptive behavior.
While this example of a theft in the workplace might not show the value of monitoring the polygraph session through a 2-way mirror, there may be instances where it’s valuable. For example, in cases involving crimes like sexual assault or murder, having detectives monitor the session through a 2-way mirror may add value to the process.
Detectives have specialized training in monitoring signs of deception in body language, and they might notice aspects of behavior in the suspect that the polygraph professional doesn’t identify.
Using a 2-way mirror for monitoring a polygraph session has its pros and cons, but whether or not it’s the right choice depends on the merits of the situation. It might not add value in cases like workplace theft and other business examples. However, it might give law enforcement an edge in bringing the suspect to justice in criminal cases.
Either way, the authority (business owner or law enforcement) and the polygraph examiner must comply with all legislation surrounding monitoring polygraph sessions. Failure to comply with the law may result in heavy lawsuits against the company, or law enforcement, by the examinee.
In Massachusetts, the use of lie detector tests in employment practices is strictly regulated, reflecting the state’s strong commitment to protecting workers’ rights. State law prohibits employers from requiring or requesting that employees or job applicants undergo such tests, ensuring fair treatment and privacy in the workplace. However, it is important to note that while these regulations apply to employment settings, they do not necessarily restrict private individuals from seeking lie detector tests for personal matters.
Prohibition on Lie Detector Tests in Employment
Massachusetts law categorically forbids employers from using lie detector tests as a condition of employment. Whether polygraphs or other devices, these tests cannot be used in the hiring process, for job promotions, or as a tool to assess current employees. Employers are also prohibited from retaliating against an employee or job applicant who refuses to take such a test or asserts their rights under this law.
Employers in Massachusetts are further required to inform all job applicants of this legal protection. Employment applications must include a clear statement that it is illegal to require or administer a lie detector test as a condition of employment. Violating this law can lead to severe penalties for employers, including fines, imprisonment, or both.
Private Lie Detector Tests
While Massachusetts law restricts the use of lie detector tests in the context of employment, it does not prevent individuals from voluntarily seeking polygraph services for personal reasons. Private lie detector tests are often used in matters such as family disputes, relationship issues, or other personal concerns where individuals want to verify the truth. These tests, offered by licensed examiners, may help address specific situations like infidelity, trust issues, or allegations of theft.
In these cases, the use of polygraphs is not governed by employment law, as they are conducted on a voluntary basis, typically outside of the workplace. Private polygraph services in Massachusetts are often sought by individuals or private parties, with the results being used for personal decision-making or dispute resolution. However, the results of these private tests are typically not admissible in court, and their legal standing varies depending on the context in which they are used.
Penalties for Violations in Employment
Employers who violate Massachusetts laws concerning lie detector tests in employment can face serious penalties. A first-time violation may result in fines of $300 to $1,000, while repeat offenses can lead to fines of up to $1,500 and imprisonment for up to 90 days. Additionally, in corporate settings, the president, chief operating officer, or other senior staff members who condone such violations may also be held accountable.
Importantly, employees or job applicants cannot waive their rights under this law. Even if an individual agrees to take a lie detector test, such a waiver is not considered a valid defense for employers if legal action is taken.
Civil Actions and Employee Rights
Individuals who believe their rights have been violated under this law can file a civil lawsuit against their employer. They have up to three years from the date of the violation to initiate legal action. These lawsuits may seek injunctive relief and financial compensation for damages, including lost wages or benefits. Massachusetts law allows for the recovery of treble damages, which can significantly increase the financial penalties imposed on employers found in violation. In addition, successful plaintiffs are entitled to recover litigation costs and attorney fees.
Conclusion
Massachusetts maintains strict laws regarding the use of lie detector tests in employment, offering significant protection to employees and job applicants. Employers are prohibited from using these tests, and violations can lead to severe penalties. However, private lie detector tests remain available for individuals who seek them for personal reasons, outside of the employment context. While not subject to the same restrictions, the use of private polygraph services must be voluntary, and their results are typically limited to personal matters or dispute resolution. In all cases, individuals should be aware of their rights under Massachusetts law and the options available to them both in employment and personal situations involving lie detector tests.
Drug use in America is on the rise. According to research by the National Center for Drug Abuse Statistics (NCDAS), around 32 million Americans, or just over 11% of the population, use illegal drugs like cocaine, fentanyl, and methamphetamine or abuse prescription medications like oxycodone and benzodiazepines.
The same report shows that drug abuse costs US businesses over $740 billion yearly in lost productivity and drug-related crimes. Watch some videos on YouTube of xylazine addicts stumbling around the streets of Kensington, PA, and you might think the problem only affects the poor and homeless. That’s not the case.
Research shows that people from all age groups and all societal demographics are using drugs – and the problem is growing exponentially. The reality is people like doing drugs. Breaking down the usage by drug, we see the following consumption statistics, rated by popularity.
Marijuana: 2.9 million
Prescription stimulants: 2.9 million
Methamphetamines: 2.2 million
Prescription painkillers: 1.9 million
Heroin: 957,000
Cocaine: 638,000
Prescription sedatives: 319,000
These figures don’t even include fentanyl, the dangerous drug that’s 50X more potent than heroin. It’s unclear how many people are using the substance because it’s now commonly “cut” into many other drugs like cocaine and heroin to increase the potency of these compounds.
What we do know is that fentanyl use is exploding. In 2022, there were just over 56,500 fentanyl overdoses. In 2021 that number surged to more than 80,800. It’s clear the problem is getting out of hand. In fact, Fentanyl overdoses are now the leading cause of death in Americans aged 18 to 49.
Fentanyl aside, we can see drug use is on the rise across all drugs and all age groups in the United States. More people are experimenting with marijuana and pain medication than ever before. So, what does this mean for your business?
The chances are someone on your team is using drugs. Whether that’s recreational or if they have a severe addiction, it’s a problem for your business. In 2022, over 10,000 commercial truck drivers tested positive for marijuana. The number was 7,750 violations a year earlier, showing an exponential increase in drug use in this industry.
The Issue with Drug Abuse in the Workplace
Drug use in the workplace is a problem. Despite costing businesses hundreds of billions of dollars annually, it also presents a health and safety risk. Would you want to drive next to a truck driver stoned out of his mind after smoking a joint at the truck stop?
That’s a commercial vehicle weighing tens of thousands of pounds. There’s considerable evidence showing marijuana use slows your nervous system’s response to stimuli, meaning these drivers can’t react to dangerous situations as fast as they could if they were sober, which could cost people their lives.
A Substance Abuse and Mental Health Administration (SAMHSA) study shows that 68.9% of all drug users are employed actively in the workplace. According to the TN Department of Labor & Workforce Development, over a third of all employees are aware of sales of illegal drugs in the workplace.
That means not only are some of your employees using drugs at work, but they might also be selling them to other employees to make some cash. The statistics are nothing short of shocking. Business owners and corporate leaders need to take action to devise a plan to counteract the influence drugs have in the workplace.
This post looks at how implementing polygraphs can assist with uncovering drug abuse in the workplace and what you can do to take action against it happening in your company.
How Does Drug Abuse in the Workplace affect Employers and Employees?
In reality, you’re never going to stop your employees from using drugs. Many of them probably use drugs recreationally on the weekends when they go out to parties, or they might even have a marijuana habit where they smoke it at night when they get home to unwind after a long day.
Since more states are making recreational marijuana legal, you don’t even have a say in if this conduct is acceptable. Worse than that, with the current hiring crisis, thanks to the Federal Reserves’ tsunami of liquidity printed in the wake of the coronavirus, fewer people are looking for work.
Many companies are dropping testing policies because they can’t find candidates that aren’t on some type of drug. For instance, the trucking industry had to stop testing for marijuana in 2022 because there was a shortage of drivers and a supply chain glut causing massive problems in the industry.
So, no matter how hard you try, you’ll never stamp out employee drug use. Having an employee that smokes marijuana in the evening isn’t a real problem. It’s when they bring it to work and smoke on the job that it becomes a problem.
You don’t have to worry about recreational drug users. They aren’t the problem. The issue is with the hardened addict. An addict is a person that can’t go sober. They need the drug to function and can’t imagine life without being high 24/7. These people are the real problem for your business.
Using drugs at work presents a health and safety problem for the rest of the team and slows your business’s productivity. An addict could make a mistake that costs you money or your brand reputation in the market.
Using drugs at work is downright dangerous. A study by OSHA shows 10-20% of US employees that die at work have drugs in their system. It also indicates jobs in construction and mining have the highest rates of employee drug abuse. Employees using drugs at work may exhibit the following behaviors that make them a liability to your company.
They have poor employee performance and productivity levels at work.
They frequently arrive late or call out of work.
They change jobs more often than sober individuals.
They battle with efficiency and productivity in their work.
They file for workers’ compensation benefits.
Business owners must implement drug policies at their companies to prevent addicts from ruining their company and workforce. Implementing drug policies in the workplace and employee contractual agreements is a start to solving the problem.
Research from the Society of Human Resource Management shows around 57% of employers conduct drug testing on new hires. By inducting this procedure into your business, you have a good chance of weeding out the addicts.
Furthermore, your workplace drug policy can also include polygraph testing for employees suspected of using drugs or selling them in the workplace. With these practices in place, you get a better quality employee and a lower potential of inviting addicts into your organization.
What Does Drug Abuse in the Workplace Cost Businesses?
We’ve already discussed how drug use in the workplace costs American companies over $740 billion in lost revenue annually. While mental illness is a big problem in the workplace and much the subject of discussion for thought leaders in the space, many aren’t paying enough attention to the problems workplace drug abuse can cost their company.
An online tool from the National Safety Council lets companies estimate how much drug addiction in their company may be affecting their bottom line. This tool encourages employers to find ways to identify drug addiction in employees and assist them with finding the help they need to beat the problem.
From lost revenue to stolen goods, workplace accidents, and more, drug addiction in the workplace is a serious problem costing businesses huge amounts of money every year.
Workplace Drug Testing and Substance Abuse Programs
Many large companies already have drug testing policies in place. However, many smaller firms don’t have the budget available to implement these policies. If drug users hear an employer will test them for drugs, they will likely not return after their pre-employment interview, even if they land the job.
This strategy makes pre-employment drug testing an effective screening tool to weed out addicts before they have a chance to enter the business. It’s much more challenging for business owners to fire an employee for drug use after onboarding them to the team.
Employee rights show that employees can refuse drug tests and polygraphs as per the Employee Polygraph Protection Act of 1988. So, when you have an addict in your organization, it might be challenging to remove them without creating a massive liability suit for your company.
Those companies implementing drug testing programs for their employees receive the following benefits for their company and team.
Improved morale.
A reduction in workplace accidents.
Lower levels of employee theft.
An increase in productivity.
Lower employee turnover.
Fewer workers’ compensation claims.
So, the reality is companies can’t afford to not implement a drug testing program. The research shows the benefits lead to cost savings that far exceed the costs of running the tests. Testing provides a safer workplace experience for employees, boosting revenues for the business due to an improved workplace experience. Effective workplace drug testing programs include testing and prevention strategies for employees.
How Do You Know If an Employee is Abusing Drugs?
Different drugs have different effects. Some might be blatantly obvious, while others might be more subtle and harder for employers or co-workers to spot. Some drug users are also better at covering their tracks than others.
For example, if John goes out to his car on lunch break and comes back smelling like marijuana, with bloodshot eyes, chances are he smoked a joint on his break. However, Susan might do the same, but she puts eyedrops in her eyes after smoking and wears perfume to mask the smell of the smoke.
This example changes if we look at harder drugs like cocaine. An employee might go to the bathroom, sniff a line, and return to his desk, sniffling and acting erratically. On inspecting the bathroom, you find traces of cocaine on the toilet roll holder where he did his line. Conversely, another employee might do the same but wipe down the area and not do enough to make them sniffle or act erratically.
Uncovering drug use in the workplace is challenging, and in many cases, it’s not the management but other employees that notice the addictive behavior in their colleagues. However, they might feel it’s not their place to “snitch” on the co-worker, and they could keep it under wraps. In other cases, the employee might walk straight into the manager’s office, accusing their colleague of using drugs and demanding the company take action.
Business owners and managers need to have a policy in place to deal with the discovery of drug addiction or accusations of drug addiction in the workplace.
What Can Employers Do If They Suspect Employee Drug Abuse in the Workplace?
Employers must create an open-door policy for their team, inviting them to report drug abuse in the workplace. They must ensure that all reporting of offenders is strictly confidential. The employee reporting the problem should have a clear path to management to register the issue, with the opportunity to report it at work or outside business hours in private.
The employee reporting the problem must understand they are not putting the other employee’s job at risk. They should realize companies have policies to help the workers heal from their drug problems. The employee should understand that failing to lodge the report puts other co-workers and their livelihoods at risk.
Is It Legal to Use a Polygraph to Uncover Substance Abuse in the Workplace?
According to the Federal Employee Polygraph Protection Act of 1988, employers may not force or bully employees into taking a drug test or a polygraph exam to uncover their drug use. However, there are exceptions to the rule.
Most public entities, such as the FBI, NSA, and CIA, require pre-employment polygraph screening of candidates. However, this practice is strictly controlled and mostly outlawed in the private sector. Unless the company is involved in the pharmaceutical industry or in high-value asset protection or guarding, they can’t use pre-employment polygraph testing on candidates.
Under the Federal Employee Polygraph Protection Act, private companies are prohibited from implementing the following.
Require, suggest, or request any employee or candidate to submit to a polygraph.
Refer to, accept, use, or inquire about polygraph exam results conducted on employees or job candidates.
Discipline, discriminate, or dismiss employees or candidates who refuse a lie detector test.
The Act also prevents employers from firing or discriminating against employees who claim protection under the Act. While government employees don’t have these same protections, civil service rules may provide them with some protection in this regard.
However, employers can still implement a policy of polygraph exams and drug testing at their companies. It means that the employer must be more careful about how they implement it into their approach and how they execute it.
Hiring a competent attorney is the best way to build a policy of effective drug testing and polygraphing while remaining compliant with the Federal Employee Polygraph Protection Act.
There are several restrictions regarding drug testing and polygraph exams in the workplace regarding suspected drug abuse. The employee must read and sign a statement before undergoing a lie detector test. This statement includes the following.
A list of topics that cannot be discussed in the exam. Examples are religious beliefs, racial matters, sexual preference, political affiliations, and lawful activities in labor unions and associations.
Information concerning the employee’s right to refuse the polygraph test.
Candidates do not have to take the test as a condition of employment.
An explanation of the use of test results.
An explanation of the employee’s or candidate’s legal rights if the test doesn’t comply with the
The employee or candidate has the right to request the following when undergoing the polygraph test.
They may ask the examiner to stop at any time.
They may ask the examiner to phrase the questions in a way that’s not intrusive or degrading.
After completing the test, the employer may not share the test results with anyone. Results can be disclosed only to the employer and employee, a government agency or court, and a mediator or arbitrator in a court-related matter. The law prohibits prospective employers from accessing prior polygraph exam results.
In Closing – Can I Implement Drug Tests and Polygraphs for My Employees?
Handling addiction in the workplace is challenging for American businesses. The Employee Protection Act makes it hard for employers to weed out addicts, providing them protection against employers taking advantage of them. While this Act was meant to protect employees, it’s prone to abuse, much like drugs.
Some employees who are substance abusers might try to leverage the Act against you to seek a settlement in court. Understanding your rights as an employer is critical to you remaining on the right side of the law. Seeking advice from a talented and competent attorney is the best way to set up the right drug policy for your company.
The attorney will advise you on how to design and implement the policy and how to handle situations where you suspect employee drug abuse in the workplace.
Do you want reliable employees in your organization? Every business does, but few of them find the right talent. In today’s employment market, where it’s getting harder and harder to find the right people, many companies are settling for less in their HR practices.
A reliable employee is like gold. They’re a huge asset for your business and something you must hold on to at all costs. So, how do you find reliable employees? HR practices typically involve reviewing the person’s resume and past work history. They’ll check on references and conduct a pre-employment interview to see if they feel the candidate is the right fit for the company.
The problem with the pre-employment process is that it’s not infallible, and many employees can lie on their resumes, make fake references, and scam their way into a position at your company. Once the candidate is in the business as a registered employee, it takes a lot of work to get them out.
Can you implement a lie detector test into your pre-employment processes? Can a polygraph help you find reliable employees? This post unpacks everything you need to know about using polygraphs to uncover the diamonds from the coal in your pre-employment and employment processes.
What Is the Definition of Employee Reliability?
Let’s start with the definition of a reliable employee. What is a reliable employee, and what can you expect from their behavior on the job? Business owners can consider a reliable employee as someone they can rely on to get the job done. You don’t have to moan at them to do something, and they use initiative in their work, exceeding your expectations of what you expect from them.
Employee reliability is a critical factor in the efficacy and performance of our team. A reliable employee adds value to your organization and pushes your business forward, making more money for you, which you, in turn, pass on to your team to motivate them to keep up an outstanding performance. A reliable employee doesn’t require you to sit on them all day; they can operate independently and do so with integrity.
Here are some of the other qualities that encompass a reliable employee.
Showing up at work-related functions.
Arriving at work on time.
Consistently performing to their best and meeting deadlines.
Operating at a high level.
Being willing to take on more responsibility.
Taking the initiative without being coerced into it.
These are some of the qualities of reliable employees, and we’ll look at them in more depth later. However, for the moment, let’s look at something critical to employee performance and reliability – work ethic. Business owners need to hire candidates that are productive and efficient at their job. This goes for on-site and remote positions.
For instance, you don’t want to hire someone for a remote position that doesn’t have a good work ethic. Remote work requires the employee to have tremendous discipline, or they’ll slack off, and there’s no real way you can check on what they’re doing with their time. You can set benchmarks and milestones for them to meet weekly and daily, but you don’t know if they’re putting effort into the work or just doing what it takes to get by.
Reliability is more than simply finishing the work allocated to you promptly. It also refers to handling that workload and using company resources to help you produce faster and better results. The management and the team should be able to rely on the employees to deliver to the best of their skill level and ability.
It takes time for an employee to prove their reliability and performance. Reliable employees separate themselves from the pack as they progress in their company. They show the ability to work independently and as part of a team while producing work and results of a high standard. Reliability is more than just “brown-nosing” management.
Employee reliability has a knock-on effect on all other aspects of the company’s operations. It affects the employee experience as a whole in the company, affecting employee engagement and team collaboration. It’s essential to consider reliability as the glue that holds the company and team performance together.
How Do Reliable Employees Benefit Your Business?
So, how can employee reliability affect your business? We’ve already discussed the benefits of having reliable employees, but let’s drill down into the details.
Employees Carry Out the Organizations Mission
Employees are important to a business because they define its function and mission. They influence your clients and form the image of your business in your customer’s eyes. For instance, your business has a focus on customer service. Your employees are responsible for carrying out this company value; the organization can’t do it without them.
They’re the Bedrock of the Company
The employees are the lifeblood of any organization. They are the cogs in the machine that keep everything running smoothly. If you don’t have employees, you don’t have customers, and you don’t have a business. If you don’t value your employees and do everything possible to improve the employee experience, you can’t expect them to produce a blue-ribbon customer experience.
Employees Drive Company Revenue
The employees are the ones that engage with customers and drive revenue. Their skillset and dedication to the job and their career are what build a company’s bottom line. For instance, you could have someone on your sales team which runs through the script and does as little as possible. At the end of the month, they barely meet their budget.
Then you have sales professionals that make selling seem effortless. They understand persuasion and how to use that in their pitch. As a result, they double their monthly budget while the others it back and wonder how they do it instead of analyzing their strategy.
They Influence the Customer Journey and Experience
The customers engage with your employees. You can create guidelines for your employees to follow to process the client through the customer journey. However, it’s up to the employee to execute this process in a manner that’s consistent with your company values and guidelines surrounding your customer journey.
Reliable Vs. Unreliable Employees
What’s the difference between a reliable and an unreliable employee? There’s a set of employee characteristics that employers must look for and compare against benchmarks for their employment standards.
Teamwork
Teamwork is an essential quality in a reliable employee. If employees can’t work with others, they’ll fail to collaborate and use available resources. Successful collaboration requires excellent communication skills, dedication, tolerance, and patience, with the rest of the team.
By demonstrating teamwork skills, employees can exhibit several other desirable skills. Being a team player ensures the employee contributes positively to the team. Good team players have the following characteristics.
They’re flexible and don’t have a problem changing their operating procedures or the employee experience.
They’re committed to the team’s success and understand their organizational role and how it fits into the overarching organizational narrative.
They are responsible, and you can depend on them to deliver in a pressure situation.
They exhibit strong problem-solving skills and don’t crack under pressure. They understand how to leverage company resources to resolve any issue.
They’re respectful and supportive of the team.
Adaptability is also crucial to effective teamwork and employee function within the organization. Team members who adapt to motivating and leadership roles have a better relationship with the team and management.
Independence
Reliable employees have the ability and skillset to work independently of others. They operate without the need for managers standing over them, pushing them to succeed. Even in team-oriented organizations, employees need to have the capability to make decisions independently of others.
There’s a level of trust between the management and the employee. The manager can rely on the employee to deliver results without micro-managing the process. A reliable employee that can operate independently has the following characteristics.
They have good focus and can work without someone standing over them.
They have well-developed time-management principles.
They are resourceful and think outside of the box.
They can critique their work and make changes to improve results.
When employees can work independently, management can rely on them to deliver their best performance without requiring direct supervision.
Leadership
Many business owners consider management as part of the organization required to display leadership skills. Reliable employees demonstrate good leadership skills that move the organization forward.
They can take charge in stressful and pressurized situations where unreliable employees would crumble. Some of the good tenants of strong leadership skills include self-confidence, skills, honesty, and reliability.
They display excellent organizational skills.
They can identify the strengths and weaknesses in the team and work with the weaker people to strengthen them.
They have confidence in the management and their ability to lead.
They have a character that inspires other people on the team.
They have empathy toward other team members.
They can give constructive feedback to team members and management.
Employee leadership lays the foundation for management to recognize the talent suitable for promotion. It reduces the need to hire management from outside the team, allowing promotion from within the company and cutting costs for recruitment and training.
Communication and Interpersonal Skills
Reliable employees have good interpersonal and communication skills. They get along with the entire team and don’t form “clicks” within the team that pit dome employees against others. They display empathy when they understand each team member’s position and how they fit in the organizational space.
They can communicate with the team and the clients. For instance, if a customer has a hard time and calls the customer service desk, a reliable employee will work with the customer to resolve the problem. They’ll go out of their way to ensure they hang up the call with the customer satisfied.
The unreliable employee will only go as far as they feel like going and then give up if they think the customer isn’t playing along. The result is weakened customer experiences. Good communicators display the following characteristics in handling team and client relationships.
They offer a high level of professionalism to the team.
They have an open mind to new ideas.
They can communicate verbally and non-verbally.
Good communicators are good listeners. They understand other people’s positions and alter their experience in the customer or employee experience to accommodate what the other person has to say.
Integrity
Employee integrity is something that’s challenging to find in today’s workforce. Traits like honesty and accountability are becoming harder to find in employees. Integrity also refers to employees being honest about their preferences and capabilities.
An employee with integrity will stand up for their team if their manager abuses their authority. They’ll operate from a space where they are consistent with their values. For instance, they deliver work to a high standard day in and day out. Unreliable employees are inconsistent, and they don’t provide reliable results consistently.
Transparency is crucial to the workplace environment and shapes company culture. Reliable employees will display the following traits relating to their integrity.
They’re honest about their work progress.
They’re ethical in business practices.
They’re aware of the company’s core values, demonstrating them daily.
They make decisions based on honesty and integrity.
Employees with good integrity create an environment of openness through honest communication with the team and management. The entire organization benefits when employees can share their feedback, concerns, and questions.
Can You Use a Lie Detector Test to Determine Employee Reliability?
Pre-employment screening is vital to selecting a reliable employee over an unreliable worker. Notice we differentiate between employee and worker. That’s because employees value their contribution to the organization, whereas workers do what they need to do to get their paycheck.
The last thing you need is to hire a workforce of workers – you need high-value employees to see your organization succeed. Companies have various HR strategies to weed out the good from the bad when making new hires. For instance, some use psychological tests to determine if the candidate is a good fit.
Companies will also use performance evaluations to ensure that their employees meet the benchmarks required for their position in the company. Employees must perceive that the performance evaluation provides a reliable indicator of actual performance and that their salary, bonuses, and benefits are tied to their performance.
When employees perceive unfairness in the process, they are less likely to commit to the organization and their job. Conversely, if they feel the process is reliable and fair and reliable, they’re motivated to perform on a higher level to achieve recognition and rewards.
While some organizations fund it easy to establish onboarding and performance benchmarks, others might not have the same ease of implementation. So, can instituting a polygraph policy in new candidate onboarding and employee performance evaluation benefit the company and the employee experience?
A Lie detector test can have several benefits, more suited to onboarding candidates than to the performance evaluation side of the employee experience. If you have to strap your employees up to a lie detector test to get them to perform, they might find that somewhat intimidating and unfair.
However, a lie detector test is a good choice for the onboarding process. It helps you weed out those prospective candidates manipulating you to get a spot on your team while not living up to their stated reputation.
What are the Legal Problems with Polygraphs in the Workplace?
The problem with instituting polygraphs in the workplace is that it’s mostly illegal and against the employment act. The Employee Polygraph Protection Act of 1988 prevents employers from using polygraphs in new employee screening.
The Act sees polygraphs as ineffective and inaccurate and responsible for creating an unfair hiring practice. For instance, employers may use it to prevent hiring people they don’t like in the interview process and being discriminatory with their hiring practices.
Using a polygraph for performance reviews may allow employers to fire staff they don’t want around anymore or use it to intimidate staff into leaving. The only time employers may use polygraphs on their workforce is in the event of situations that may harm the rest of the employee base, such as sexual harassment claims. Or if there is a situation that can create economic harm to the company, such as inventory theft.
What Industries Can Use Lie Detector Tests in Pre-Employment Screening?
That said, not all businesses fall under compliance with the Employee Polygraph Protection Act. Some public and private organizations have the right to institute a polygraph policy in the onboarding process. Let’s look at examples of when using a polygraph policy is okay.
Public Sector
The public sector allows employers from government agencies to institute pre-employment and performance screening of their workforce. For instance, candidates applying to the CIA, NSA, FBI, and state or local law enforcement agencies will likely face a pre-employment screening interview consisting of a polygraph exam.
The reason for the use of the polygraph is obvious in this case. These government agencies cannot hire people with criminal records, those with a possible espionage threat, or people with personal problems, such as debt and drug addiction.
Private Sector
Polygraphing is most outlawed in the private sector. However, there are some situations where hiring new people is necessary. For instance, companies involved in the manufacturing and distribution of pharmaceuticals may institute polygraphs in candidate pre-screening. They can’t afford to hire addicts, criminals, or thieves for their business.
The same goes for companies handling high-value assets or security companies transporting them. For instance, you want to avoid hiring a security guard that can plan a cash-in-transit heist of an armored vehicle.
Is It Worth Implementing a Lie Detector Test as Part of Your Employment Policy?
So, there are some instances where implementing a polygraph policy into your pre-employment screening process and performance analysis may benefit the company. However, for the bulk of companies, polygraphs are not allowed. It’s only permitted where there is a threat to the staff or the company presented by an employee.
However, it’s worth writing an employee polygraph policy into your employee contracts. For instance, if you note during the onboarding interview that the employee will be polygraphed if there are instances of theft in the company or if they are accused, or accuse, other employees of sexual misconduct, it could benefit your hiring process.
Many unreliable employees use the onboarding process to understand what they can and can’t do in the company. If you project an image showing the prospective employee you’re not willing to flex for misconduct in the company, they might decide it’s not worth it to go through with the hire and not return for their second interview.
However, reliable employees won’t see this policy as a threat. Instead, they will see it as a plus because they know they’ll work with a team they can trust. The result is a better quality of employees entering your company and a workforce that delivers results.
How Do You Arrange an Employee Polygraph Test?
Employers may not hire an internal team to handle polygraph exams. They must contract independent examiners or firms to conduct the polygraph process. There are hundreds of polygraph professionals across the United States.
The polygraph professional or firm must be registered, licensed, and bonded. When hiring a polygraph company, ensure you’re working with a team with a solid track record of success. Experienced polygraph professionals are the best choice because they rarely make mistakes, and you can trust the results.
The workplace is a complex dynamic. Companies vary in size, from small businesses with a handful of staff to corporates with thousands of employees. Regardless of the size and scope of the company, businesses operate under a set of rules, usually laid out by management.
Along with defining the business’s methodology and approach, these operating procedures encompass staff values and behavior in the workplace. If the employer doesn’t have these policies in place, their staff has no requirement to adhere to guidelines, and the workplace becomes chaotic.
Organizations failing to implement staff and HR policies risk their staff becoming unruly, instituting problems like sexual harassment of their colleagues, theft, drug abuse, and other illicit behavior that has no place in the office or production floor.
By putting employee behavior and expectation policies in place, employers give their team a set of guidelines they can follow to ensure they don’t step out of line. These policies create a sense of respect and common courtesy between the staff, improving the employee experience.
If things go wrong at work, the employer must take action to rectify the situation. For instance, if one employee harasses another, the employer has the duty to reprimand the offender and console the victim.
Having employee policies in place helps to identify the right procedure required by the employer or management team when handling these types of discretions. So, can a polygraph policy benefit the employee experience and cultivate trust in the workplace? Does it have a place, or is it something employers should avoid?
When Is It Acceptable for Employers to Require a Polygraph?
Employers have several methodologies available when assessing candidates for a position and disciplining current employees. When it comes to new hires, background checks, credit checks, and proper employee screening are essential to ensure you’re getting a high-quality team member and not someone saddled with emotional or financial problems in their personal life.
For instance, if you run a jewelry business and discover a new candidate has a bad credit rating and collection judgments against their name, they might not be the best choice for the position. These individuals may have financial pressures in their life you’re unaware of. For instance, they could have a gambling problem causing them to extend their credit and wipe out their savings.
In this case, hiring the candidate could result in them stealing inventory from your company to cover their debts and service their gambling addiction. However, you won’t know this unless you do the correct background check in your pre-employment screening procedure.
Implementing a polygraph procedure into your pre-employment screening may seem ideal when reviewing the benefits. A polygraph will enable you to uncover if the candidate has a gambling or drug problem and if they’re hiding something you’re unaware could potentially damage your business.
Is it Legal to Use a Polygraph in Pre-Employment Screening?
Unfortunately, in this case, the jewelry store owner is not permitted to include a polygraph test in their pre-employment screening process. The Employee Polygraph Protection Act prevents most businesses from instituting the polygraph to assess new hires. In this case, the act considers the practice of using polygraphs as discriminatory against the candidate.
However, exceptions exist to this general rule stipulated in the Employee Protection Act. While you might not institute the polygraph test for a jewelry attendant, it’s a mandatory pre-employment policy for all government and law enforcement agencies. Institutions like the CIA, FBI, DOD, and local and state law enforcement run polygraph exams on new candidates.
While it’s a common occurrence to polygraph candidates in public institutions like those previously mentioned, the Employee Protection Act also allows exceptions for the private sector. Polygraph tests are approved for candidates entering job roles in pharmaceutical products manufacturing, distribution, and dispensing.
Certain candidates for positions in security firms, such as alarm companies and high-value armored transport businesses, may institute a mandatory polygraph test in their pre-employment process. Private companies may also institute polygraph procedures in their conditions of employment for specific circumstances.
For instance, a manufacturing business holding high-value inventory that’s easy to fence on the black market may use a polygraph when suspecting employee theft from the company. Or a financial organization may implement a polygraph policy to question employees they suspect of theft or embezzlement of client funds that may harm clients and damage the company’s reputation.
Likewise, companies dealing with sexual harassment claims or other severe instances of employee transgressions would not break the conditions of the Employee Protection Act by implementing polygraph testing for existing employees. However, it’s important to note there are strict restrictions regarding implementing polygraph exams in the workplace.
All employers should consult a qualified attorney when implementing a polygraph policy. If employers unlawfully conduct polygraphs on their staff, it exposes them to liability, with the employee suing them for a breach of the Employee Protection Act. Penalties may be severe for those companies that break employee confidence.
Who Is Legally Responsible for Conducting a Polygraph Test in the Workplace?
If a company consults with a competent and qualified legal professional and gets the go-ahead to implement a polygraph testing procedure in the workplace, it must follow specific guidelines. The employer themselves may not polygraph their employees.
Only a qualified examiner that’s licensed and bonded may conduct a polygraph exam in the workplace. The examiner will work independently or for an institution. In both cases, they must be registered with the relevant state authority allowing them to operate and conduct polygraph exams.
The examiner may only disclose the test results to specified individuals, such as the business owner. If an individual fails a polygraph, the business owner may not disclose the results to another employer. Doing so would violate the Employee Protection act and open the company to a liability suit.
Any employee asked the undergo a polygraph test for their job must determine if their employer has a legal right to make the request. If they don’t work in a position where a polygraph is a viable request from the employer. For example, if you work in a restaurant as a chef, and the boss wants to polygraph you because he suspects you of stealing inventory, you may deny their request.
If they insist on your taking the polygraph or fire you because you deny the request, you have legal options available to you. In this case, you would need to contact an attorney, who’ll lead you through filing a suit against your former employer.
What are the Benefits of Using a Polygraph in the Workplace?
Implementing a polygraph policy in the workplace has several advantages for the employer and their team. While many HR professionals state that a polygraph policy may cause problems with trust in the company, it’s quite the opposite. Some HR professionals may also affect the accuracy of the polygraph is not a certain indication of deception. It’s still a viable policy to institute in your organization.
Uncover Theft
A polygraph is an effective tool for preventing and uncovering theft in your company. If you operate a business with high-value products, like a jewelry store, implementing a polygraph policy can prevent your staff from considering stealing your merchandise. They’ll know that they have to undergo a polygraph if they steal goods, and the threat of this procedure may be enough to stop them from considering planning a theft.
It’s also an effective tool for uncovering a thief in your organization. Keeping with the jewelry example, if you suspect your employee is stealing merchandise, you can order them to take a polygraph, provided you list it in their conditions of employment in their contract when hiring them. If they refuse, there’s a good likelihood they’re the thief, and you have recourse to fire them for refusing to take the polygraph.
However, if you test the employee and they come up as the suspected thief, it’s important to note that the results of the polygraphy will likely not be admissible in court. Therefore, without corroborating evidence, it’s unlikely you’ll be able to pursue charges against them for stealing your goods.
Uncover Fraud
Financial institutions like investment firms handling client funds are prime candidates for implementing a polygraph policy. For instance, if you suspect one of your banking team members is embezzling client funds, you can send them for a polygraph to uncover the behavior. In this case, you might have a team of individuals you suspect of the theft.
You can polygraph the entire team and likely find the culprit through the lie detector exam process. As with the jewelry store theft example, you won’t be able to use the polygraph report as conclusive evidence in a case against the offending party. You’ll require corroborating proof to include the polygraph results and get a conviction in court.
Uncover Substance Abuse
Substance abuse is a massive problem in the United States. In 2022, drug overdose will be the leading cause of death for people aged 18 to 49. This shows the extent of the problem in the country. Drug abuse can be challenging to identify in employees if you don’t know what you’re looking for in terms of physical indicators. Employees addicted to drugs may create big problems for the organization.
Drug use can impair function, reducing employee productivity. In extreme cases, employees may need to steal or embezzle money from their employer to fund their drug habit. They may get into debt, requiring them to take credit to cover the costs of their habit. When that runs out, they’ll look to steal from the business to find the money to fund their drug addiction.
If you include polygraph exams as a condition of employment in their contract, you have the right to test them for substance abuse in the workplace. An addict presents a risk to your business, so you can ask them to undertake the polygraph, or they risk being fired for insubordination.
Uncover Sexual Harassment
Sexual harassment is a huge problem in the workplace. The #MeToo movement uncovered what was previously thought as an outlying behavior, showing it to be all too common at places of employment. However, some employees may accuse others of sexual misconduct out of spite for the other person, despite them doing nothing of the sort.
Uncovering who is telling the truth in this situation is challenging. Due to societal pressures, employers often assume the female is infallible and the honest party, but that might not always be the case. A polygraph will determine the truthful party in the sexual harassment claim.
As with the other examples, if one of the parties involved refuses the test, but the other is willing to take it, there’s a good chance they are the guilty party to the claim.
How Does a Polygraph Policy Cultivate Trust in the Workplace?
From the above examples, we can see the utility of polygraphs in the workplace. It keeps people from stealing, making false behavioral claims, and preventing workplace drug abuse. By implementing this policy, employers can foster a sense of trust between team members, management, and the C-suite.
Explain the Polygraph Policy to Employees
If employers make the candidate aware they will be polygraphed for these transgressions at work, the employee has the right to accept the position or leave it. If they decline, then it’s a good screening tool, preventing you from onboarding employees with the potential to damage your business.
As long as you explain the policy and ensure the employee is fully aware and informed, you won’t have a problem if they decide to decline it when you ask them to take the polygraph. In this case, you have a clear legal path for lawful dismissal.
A Sense of Security and Safety
Implementing a polygraph policy creates a sense of trust between employees. For instance, if we refer to the jewelry store example, the employees are all aware that any case of theft will result in a polygraph exam for the entire team. People are less likely to steal if they know they’ll be caught. As a result, the other team members don’t have to worry about their fellow employees stealing from the business.
This fosters a sense of trust because they don’t have to worry about false accusations from management. It also gives management and the business owner or C-suite confidence in their employees.
Likewise, they don’t have to concern themselves with their employees stealing. While it’s possible employees may still take the risk of attempting to steal, it’s more likely the employer will uncover the culprit responsible for the theft.
Preventative Behavior Strategies
Similar to the theft example, implementing a polygraph policy with your team prevents untoward behavior in the workplace. If we look at sexual harassment at work, employees are less likely to behave inappropriately around their colleagues if they know they will be caught out for their misbehavior.
So, employers and the team know there’s a good chance they’ll experience good treatment from their colleagues at work. They don’t have to worry about being harassed by colleagues, and others don’t have to worry about false accusations being made against them.
Are There Drawbacks to Implementing a Polygraph Policy in the Workplace?
While some HR professionals state there are drawbacks to implementing a polygraph policy in the workplace, the above clearly shows the benefits far outweigh the cons.
Employers get a means of vetting employees at the pre-employment interview without needing to polygraph them. The threat of polygraph policies is enough to deter would-be troublemakers from taking the position.
While some HR professionals claim employees may feel violated by the polygraph process, that only really holds up if the employee has something to hide. If they are innocent of the allegations against them, they should have no problem taking the polygraph test.
Provided the employer makes the benefits of the polygraph policy clear at the pre-employment interview, there should be no reason for the employee to protest the use of the policy.
In Closing – Work with a Qualified Polygraph Specialist and Company
It’s critical for employers to work with a qualified, registered, and approved polygraph professional. Look for companies in your area offering these services and ask them for an interview to discuss what they can provide your company.
The integration of lie detector tests, or polygraphs, into pre-employment screening processes has gained traction due to significant advancements in their accuracy and reliability. This improvement has led to a broader acceptance and utilization in various industries, highlighting their potential benefits while also emphasizing the importance of examinee rights.
Improved Accuracy and Applications
Recent technological advancements have made polygraph tests more reliable, increasing their effectiveness in detecting deception. This has expanded their use in several key sectors:
National Security and Defense: These industries prioritize the utmost integrity, making polygraphs essential for screening personnel handling sensitive information.
Law Enforcement: Polygraphs assist in ensuring that only individuals with high ethical standards are recruited for public safety roles.
Financial Sector: In banking and finance, where there’s a high risk of fraud and embezzlement, polygraphs serve as an additional safeguard.
Enhancing Workplace Trust and Integrity
The use of polygraph tests in pre-employment screening helps in building a foundation of trust and integrity. By confirming the honesty of potential employees, organizations can cultivate a more secure and ethical work environment.
Complementing Traditional Hiring Processes
Lie detector tests can augment standard interview techniques, providing a more comprehensive assessment of a candidate’s character and reliability. They serve as an additional tool alongside interviews and background checks.
Adherence to Legal and Ethical Standards
While the use of polygraphs has become more widespread due to their improved accuracy, it remains imperative for employers to strictly adhere to legal frameworks like the Employee Polygraph Protection Act (EPPA). This act regulates the use of lie detector tests in employment and ensures non-discriminatory practices.
Examinee Rights
The rights of individuals undergoing polygraph tests are of utmost importance. This includes:
Informed Consent: Ensuring candidates are fully aware of the process and voluntarily agree to undergo the test.
Confidentiality: Safeguarding the privacy of the results and the information disclosed during the test.
Fairness and Non-Discrimination: Administering tests without bias and in compliance with employment laws to prevent discrimination.
Reducing Workplace Misconduct
By effectively screening candidates, organizations can proactively mitigate risks related to workplace fraud, theft, and other misconduct. This proactive approach contributes to a safer and more trustworthy work environment.
Conclusion
The improved accuracy of lie detector tests has made them a more viable and valuable tool in the pre-employment screening process. They offer a unique means of assessing candidate honesty, complementing traditional hiring practices. However, their use must be balanced with a strong commitment to legal compliance and the protection of examinee rights, ensuring a fair, ethical, and effective hiring process.
Are you a business owner? Do you have problems with hiring honest employees? The reality of being an employer is that people tend to lie – all the time. They’ll lie to get a job, lie on the job, and do it for several reasons. People will lie to avoid punishment or make themselves look good, and this behavior can hurt your organization.
As an employer in the private or public sector, it’s your duty to hire trustworthy people for your team. Not only for the sake of your business but for the safety of the employee and workplace experience. If you have dishonest people on your team, they can sow discord in the business, increasing staff turnover.
It’s important to find out the truth in the pre-employment process and on the job. A polygraph exam allows employers to discern the truth from lies, allowing them to improve the employee and workplace experience for their team.
What Is a Polygraph?
A polygraph, also known colloquially as a “lie detector test,” helps employers root out bad actors in their workforce. Some employees work diligently and honestly, while others choose to lie, cheat, and steal. Unfortunately, uncovering liars is challenging because most dishonest people are good at covering their intentions.
A polygraph exam allows employers to stamp out deceit, deception, and dishonesty in the workplace. For instance, if you experience theft in the workplace, such as an employee stealing your inventory, a polygraph can help you uncover the thief. Without the polygraph, you might never discover the employee responsible for the theft.
While the polygraph isn’t conclusive evidence that holds up in court, it’s enough to help you start building a case against the thief. When employees know you’re onto them, they’ll often leave of their own accord, without you needing to press action against them.
So, what is a polygraph exactly? A lie detector test involves a qualified examiner hooking the employee up to instrumentation while they sit in a high-back chair. The employee undertaking the exam has the examiner connect two corrugated rubber tubes to their chest and abdomen. The examiner also connects a monitor to the fingertips, sweat pad sensors to the fingers or palms, and a blood pressure cuff to the upper arm.
The instruments connect to a laptop running specialized software designed to analyze the physiological feedback from the employee as the examiner asks them a series of questions. The examiner will note the employee’s responses and how they correlate to the readout from the software.
Although some claim polygraphs are inaccurate and produce false positives, they are remarkably accurate at detecting deception. The polygraph works on analyzing the body’s “fight-or-flight” response to stimuli.
When the employee sits in the chair, hooked up to the polygraph, it activates a primal part of the brain and nervous system known as the “sympathetic nervous system.” When the SNS detects stress from external factors, such as a polygraph, it signals the hypothalamus in the brain to release the hormone cortisol and adrenaline into the bloodstream.
These biochemicals increase blood pressure, pulse, respiration rates, and sweat gland activity as the body goes into fight-or-flight mode. The employee enters this state as the examiner asks them questions, and they start to lie to cover up their actions.
The employee can’t stop the fight-or-flight reaction by the nervous system. It’s an “autonomic” response, like breathing – meaning you don’t have to think about it; the brain handles it without conscious input.
So, the polygraph detects the physiological changes in the body as they relate to the questions asked in the exam. If these biomarkers increase, the examiner notices them on the screen and assumes the employee is being deceptive.
Understanding the Polygraph Protection Act of 1988
While polygraphs are effective at spotting employee deception, they are not admissible as evidence in court. The “Employee Polygraph Protection Act of 1988” (EPPA) forbids employers from using the polygraph exam in the workplace. Employers must meet strict regulatory requirements to implement a polygraph policy.
There are different rules surrounding why an employer may implement polygraph exams in the pre-employment screening and with employees already on the job.
Private Sector Polygraph Testing
Polygraphs are mostly outlawed in the private sector. If an employer wants to polygraph their staff, they need a good reason to do so. For instance, there must be a workplace theft that could cause the company a significant financial loss. Or an employee might accuse a colleague of sexual harassment.
An employer can implement a polygraph exam to uncover the truth if that’s the case. Without the use of the polygraph, the employer might never discover the thief of which party is responsible for the sexual harassment. As a result, the workplace remains unsafe for the rest of the team.
Private-sector employers may only use polygraphs in the pre-employment process under specific circumstances. For instance, the employer may operate a private security firm or high-value asset transfer service. Or they might run a pharmaceutical manufacturing or distributing business. In these instances, the employer needs to know they are hiring trustworthy individuals, or they place their business, clients, and employees at risk.
Public Sector Polygraph Testing
Public organizations involved in law enforcement and national security may use polygraph exams in pre-employment screening and for employees on the job. These organizations are mostly exempt from the EPPA.
When Is a Polygraph Useful?
So, when is a polygraph useful in the private sector? More importantly, when is it legal to use a polygraph exam on candidates or employees? A polygraph policy and an exam aim to keep the workplace safe for other team members while securing the business from hiring or working with employees with criminal intentions.
Pre-Employment Screening
As mentioned, polygraphs are almost always illegal to use in the pre-employment screening process. The only exceptions are those companies involved in high-risk environments, such as pharmaceutical manufacturing, security, and high-value asset transport.
It’s vital for firms operating in these industries to institute polygraph testing. For instance, the drug manufacturer might hire a junkie that uses the job to fuel their habit or to plan with organized crime to steal drugs from warehouses or while in transport.
Similarly, a high-value asset transport company can use a pre-employment polygraph to prevent hiring criminals who might plan a cash-in-transit heist. As long as the employer complies with the legislation in the EPPA, they may implement a polygraph policy for their staff and new hires.
Employee Theft or Embezzlement
Companies that hold expensive inventory, such as jewelry, may use polygraph exams if they experience theft in the company that was obviously an inside job. The polygraph can help root out the criminal employee responsible for the act.
Likewise, financial firms handling client funds can use polygraphs in the event of employee embezzlement. The polygraph effectively uncovers the employee responsible for the violation and assists the employer with building a case against them.
Sexual Harassment in the Workplace
Sexual harassment in the workplace is a huge problem for the welfare of employees involved in the incident and the rest of the team. No one wants to work for a company that allows this kind of misconduct in the workplace. However, sexual misconduct or harassment is a double-edged sword.
In many instances, the employee claiming their colleague or boss harassed them is telling the truth. However, in other cases, they may lie to get the other person in trouble. Unfortunately, it’s often the case that employees have no other evidence to back up their claims, making it a “your word against mine” situation. A polygraph can help determine which party is being truthful.
Drug Abuse in the Workplace
Employers can use a polygraph exam to uncover employees suspected of abusing or selling drugs in the workplace. Drug abuse can disrupt employee productivity, and if an employee is selling drugs to their colleagues, it opens the company to other liabilities, which can cost it financially. A polygraph exam can assist with uncovering drug abuse or misuse and dealing.
Why It’s Important to Find Out the Truth
In the above instances of lying or criminal activity in the workplace, polygraphs are essential tools assisting employers with uncovering the truth. Without implementing a polygraph policy, employers might hire the wrong people or be unable to root out bad actors on their teams.
However, employers must implement a polygraph policy within the boundaries of the Employee Polygraph Protection Act of 1988. The initial implementation of the EPPA was to ensure employers don’t abuse polygraphs to unjustly remove employees from the workplace or as a tool of discrimination against employees they don’t like.
When used correctly, a polygraph exam is an effective tool for finding out the truth in any organization. While it’s not admissible as evidence in court, some states may allow for the admission of polygraph results if they corroborate other evidence in the case.
Finding out the truth in the workplace is vital to securing the company’s and its employees’ safety, maintaining its reputation, and preventing harm to the employee and customer experience.
Lies Always Cause Harm
Lying in the workplace never creates a good work environment. Organizations need an open and honest work environment for employees to thrive. If employees are lying about their behavior, for whatever reason, it sows discord in the workplace, detracting from the workplace and employee experience.
Liars In the Workplace Cost You Profits
Employees that lie in the workplace can cost the business profits. In some cases, that might come from direct financial impacts to the company, such as embezzlement or inventory theft. In other instances, the economic loss may come from diminished productivity or a reduction in the customer experience.
Liars in the Workplace Cost You Your Customer Relationships
If employees lie in the workplace, it can impact the customer journey and experience of dealing with your business, costing you profits and reputation. By implementing a polygraph policy, employers ensure employees understand that they can’t get away with deceitful behavior, keeping them honest in the workplace.
Can You Beat a Polygraph?
Many people believe they can beat a polygraph or that polygraphs produce inaccurate results. However, most of these people base these claims on information from the early 1980s. Studies from this era show polygraphs are only accurate at pinpointing deceptive behavior in 60% to 70% of cases.
There are plenty of stories of people using counter-measures to pass polygraph exams. Some examples are employees using pins in the front of their show to disrupt the electrical signals sent to the polygraph machine. Or they squeeze their sphincter when answering a question to achieve the same result of disrupting the polygraph analysis.
However, polygraph technology has changed greatly in the last four decades since these “hacks” were considered feasible. The late 1990s and early 2000s saw computing software, algorithms, and AI introduced into polygraphs. This upgrade in technology dramatically improved the accuracy and reliability of polygraphs.
Today’s polygraph devices run specially designed software that’s more than capable of detecting these counter-measures. If the employee attempted to use these counter-measures with today’s polygraph systems, the examiner would pick up this activity, instantly recording it as deception.
Is It Worth Hiring a Polygraph Expert?
While the advances in polygraph systems and software have been significant over the last four decades, the advances in examiner training are even more impressive. While some believe they can beat the polygraph, they won’t surpass a highly qualified and well-trained examiner. Examiners are experts in spotting deceptive tones, body language, and microexpressions.
Attempting to get past an examiner who has thousands of polygraphs behind them is silly. If this is the employee’s first time in the polygraph exam room, assuming they can control the fight-or-flight response and the examiner’s experience is simply ridiculous.
However, polygraph examiners can make mistakes – we’re all human. It pays to hire a polygraph firm with qualified, experienced examiners. With the right polygraph team administering your lie detector tests, you ensure you get accurate, reliable results.
Choose a polygraph partner with the right industry accreditations and memberships to ensure you get the best results.
Everyone lies all the time. White lies get thrown around for several reasons. Most of the time, they’re harmless and don’t cause problems. However, lying in the workplace is a very different dynamic.
When candidates or employees lie, it’s usually to cover up something severe. Maybe they stole from the business, planned a robbery, or harassed a co-worker. If that’s the case, employers must get to the bottom of the situation, removing liars or criminals from their organization.
Understanding why people lie at work is important to understanding employee behavior. Through a better knowledge of lying, employers can make better hires and improve management policies in their organization.
This post looks at why employees lie in the workplace and what employers can do to uncover these liars using polygraph exams.
Understanding the Difference in Lies at Work – Big Lies Vs. White Lies
Employers will never find employees that tell the truth all the time. These unicorns don’t exist. Your employees are like everyone else in the world; they lie. For instance, if your manager is late for work and tells you it’s because they had a flat tire and had to change it, they could be lying. In reality, they slept late because they were out partying with their friends last night.
This type of lie isn’t a big deal. If the manager is usually on-time and adds value to the organization and the staff, it’s not worth reprimanding them over the lie. Just accept it and move on. However, there are instances when lying at work is unacceptable and may cause severe damage to the organization.
Why Do Employees Lie at Work?
Employees may lie to cover up the following issues.
To Avoid Persecution for Past Crimes
The employee may not want to divulge past behavior at other places of employment. They may have been accused of theft, assault, or other crimes they don’t want the prospective employer or employer to know about.
To Falsify their Qualifications
The candidate may lie on their resume to get the job. They may falsify documents and references to gain access to the organization.
To Cover Up Misconduct
The candidate or employee may lie at work to cover up misconduct like sexual assault or insubordination.
When Stealing from their Employer
The employee may lie to cover up their involvement in a theft, robbery, or embezzlement scam.
To Cover Up Substance Abuse
The employee may lie to cover up their substance abuse issues or their involvement in selling drugs in the workplace.
Polygraphs and the Workplace
Employers can implement polygraph policies in the workplace to uncover liars and prevent damage to the organization. However, specific laws are in place to prevent employers from abusing these policies.
In some cases, it’s fine for employers to implement polygraph policies, and it’s illegal in others. Let’s unpack the specifics of implementing a polygraph policy in the workplace.
Understanding The Employee Polygraph Protection Act of 1988
The development and implementation of the polygraph changed the game for law enforcement, giving authorities the power to look behind suspect’s lies and the façade they present. However, it had plenty of potential for abuse. The same applies to the use of polygraphs in the workplace.
Employers could use the polygraph to weed out indestructible candidates, being prejudiced against who they hire. Or they could use it as a tool to remove employees from the workplace based on false grounds. The Employee Polygraph Protection Act of 1988 (EPPA) was implemented to prevent such abuses in the workplace.
Who Does the Act Cover?
The EPPA applies to private employers. The Act prohibits employers from using polygraphs for pre-employment screenings or on employees. Employers may not enforce mandatory polygraph testing for their employees or job candidates.
The employer cannot force or coerce an employee into taking a polygraph exam against their will. Doing so places the employer in violation of the Act. If found in violation of the EPPA, the employer exposes themselves to severe financial and legal repercussions, which we’ll discuss later.
Legitimate Administration of Polygraph Exams
In some cases, the EPPA doesn’t apply to pre-employment or employee screening. There are provisions of the Act where some organizations may institute a polygraph policy without being in violation of the legislation.
For example, there is mandatory pre-employment polygraph testing for many government and public institutions. If you want to apply for a job at the FBI, CIA, DOD, or NSA, you can expect to undergo a polygraph exam during pre-employment screening.
The reason for this should be obvious to anyone. As an employee of these organizations, you may be exposed to classified and sensitive information, such as state secrets. A polygraph exam ensures that the agency can trust the employee.
The Act also makes provisions for companies that deal with high-value assets or pharmaceuticals. For instance, companies involved in the production and distribution of pharmaceutical drugs may polygraph their employees and job candidates. This procedure prevents them from hiring addicts or criminals looking to take advantage of the employer.
The same applies to cash-in-transit companies. They may screen candidates and employees to ensure they hire trustworthy people, not criminals planning to rob the company. Likewise, companies involved in guarding or security may also implement a polygraph policy for their employees.
The Act also permits the polygraphing of employees in private firms where the employer believes there is a chance of suspicious activity or incidents, such as embezzlement at a hedge fund. Where employers are permitted to use a polygraph policy, they must comply with strict protocols for instituting the tests. These standards apply to the policy’s pretesting, testing, and post-testing phase.
The company must use a qualified examiner accredited by The American Polygraph Association (APA). The examiner must be licensed and bonded and have professional liability coverage. It’s also important to note there are strict laws in the Act regarding the dissemination and distribution of polygraph results.
The employer may not share the test results with anyone outside their organization. For instance, they might divulge the results to the manager responsible for overseeing the employee. However, they may not share the results with another employer if the employee resigns and looks for work elsewhere.
Employee Rights and Lie Detector Tests
The EPPA provides employees with rights regarding the ethical implementation of polygraph policies in the workplace. Employees have a right to pursue employment opportunities without being subjected to polygraph exams unless the employer qualifies for a specific exemption – which we’ll cover later.
So, if the employer wants to polygraph you for pre-employment screening, they must justify why they have this policy and how it pertains to your job. For instance, you could work as a sales rep for a collectible coin and bullion company.
You handle gold coins daily, and there’s a chance you could walk away with the merchandise or plan a robbery with a criminal group, putting other employees’ lives at risk and exposing the company to financial loss.
This means that if your employer wants you to take a polygraph test, they must prove how it is necessary for your job. Otherwise, the EPPA provides employees the right to file a lawsuit for violations of the Act.
Sanctions and Penalties for Employers Implementing Polygraph Policies
If the employer decides to implement a polygraph policy and doesn’t comply with the EPPA, they risk litigation. The Secretary of Labor may bring court action against employers violating the Act. The secretary may evaluate and assess the civil liability in the case. If they find the employer guilty, they may face a fine of up to $10,000 for each violation of the Act.
So, for instance, if the employer has ten staff members and they violate the rights of all ten, they could face up to a $100,000 penalty. In this case, the fine could be enough to cause sizeable and sustainable financial damage to the organization, resulting in its failure.
Employers violating the Act may also be liable to their employees or employment candidates for equitable relief, covering employment, promotion, reinstatement, and loss of income arising from the polygraph results.
So, not only may the business be liable for huge fines to the Secretary of Labor, but they could end up with a sizable financial responsibility to the employer, forcing the business into bankruptcy. Employers who receive a civil money penalty have the right to request a hearing before an administrative law judge within 30 days of receiving the notice.
If the employee is dissatisfied with the administrative law judge’s decision, they may request the Secretary of Labor to review the decision. The court will enforce the final determination of the Secretary of Labor on the matter.
The Relation of Lie Detector Testing and the Act to State, Local, and Federal Laws
The Employee Polygraph Protection Act of 1988 doesn’t preempt the provision of state or local laws or any collective bargaining agreement that’s more restrictive concerning polygraph tests.
Who Enforces the Employee Polygraph Protection Act?
The Wage and Hour Division of the Employment Standards Administration is responsible for enforcing the Employee Polygraph Protection Act of 1988. Employers can obtain detailed information regarding the Act and its legislation from the Wage and Hour Division’s Web site.
When Can Employers Implement Polygraph Testing?
An employer has the right to legally implement polygraph exams in the workplace for specific reasons. While the Employee Polygraph Protection act of 1988 provides a significant amount of protection against employers misusing lie detectors in the workplace, there are certain instances where the employer may use them to uncover foul play.
For instance, if the employer suspects the employee may have a role in a serious situation, such as planning a robbery on the facility, they may request the employee take a polygraph. In this case, the employer must have a reason and motive for doing so. For instance, they might have another employee willing to testify that they heard their co-worker planning the robbery with someone else on the phone.
The employer may request employees to take a polygraph if there is a financial or economic loss to their business. For instance, there’s a robbery at work, and someone stole valuable inventory overnight while no one was on site.
The employer may request a polygraph if they have evidence displaying an employee is in violation of trust. For instance, the employee is suspected of stealing the company’s IP and selling it to the competition, presenting the business with severe economic loss.
The employer may request a polygraph if an employee accuses another staff member of sexual misconduct. In this case, the employer would test the accuser and the accused if the accused protests the charges against them by the other party.
The employer may request a polygraph if they have evidence that the employee is abusing or distributing drugs, such as narcotics, in the workplace.
The employer may request employees to take a polygraph exam if they suspect the employee is involved in fraudulent behavior.
It’s important to note that the polygraph results are insufficient to initiate grounds for dismissal of said employee. The employer can use the polygraph as corroborating evidence in a criminal or civil trial against the employee.
In Closing – What Drives Employees to Lie at Work?
There are several reasons why an employee might decide to lie at work. Most deception is around self-preservation. If the employee feels they might lose their job and thus their source of income, they are likely to lie out of self-preservation.
However, the employee may lie to cover up involvement in serious events, such as fraud, theft, conspiracy, or other nefarious crimes.
In these cases, the employer is within their right sot request a polygraph. However, the employee is not obligated to comply with these requests. They have the right to refuse the polygraph under the Employee Polygraph Protection Act of 1988.
Polygraphing of employees is a sensitive topic. Before employers institute a polygraph policy in the workplace, it’s advisable to consult with a labor attorney regarding the policy’s legality. Seeking legal advice could save the business thousands of dollars in litigation settlements.
Are polygraph results admissible in court? Can law enforcement or your employer use the outcome of a polygraph exam against you in your case? It’s a touchy topic, and many assume there’s no way the court will use polygraph results against them.
However, this may or may not be the case. It depends on the situation and the legislation in your state. This post unpacks the facts surrounding the admissibility of polygraph results as evidence in court. We’ll give you everything you need to know on this subject to help you understand your rights.
What Is a Polygraph Exam?
A polygraph exam is a test designed to uncover deception. A subject will sit in a chair connected to instrumentation and software. A qualified examiner asks them a series of questions relating to the matter at hand, and the examinee provides yes or no answers to the questions.
A polygraph exam can take anywhere from 30 to 90 minutes, depending on the situation at hand. At the end of the test, the examiner will review recorded footage of the session and the test results, notifying nominated parties of the test results.
Why Would I Have to Take a Polygraph Exam?
Law enforcement or an employer may request you to take a polygraph exam for several scenarios. If you’re accused of a crime, the police could ask you to take a polygraph to prove your innocence. If your employer suspects foul play at work, such as theft, sexual harassment, or embezzlement, they may request you to take a polygraph.
Or an employer, such as the Department of Defense or CIA, may require you to take a polygraph as a part of your pre-employment screening process. The purpose of the polygraph is to uncover deceptive behavior relevant to the hiring process or a criminal investigation by authorities.
How Accurate Are Polygraph Exams?
There are two sides to this argument. Advocates of polygraph technology claim the exam is up to 98% effective and accurate at uncovering deceptive behavior. The polygraph equipment measures changes in pulse and reparation rate, blood pressure elevations, and skin sweat gland activity, compiling this data to prove deception.
The polygraph equipment connects to a laptop running specialized software interpreting the signals sent from the equipment connected to the examinee. Experts suggest the “fight-or-flight” response produced by the sympathetic nervous system is impossible to cheat, providing physiological responses that prove the examinee is lying.
Then, some state polygraph technology is only 60% to 70% accurate. They point to studies showing these results and claim that polygraph results are easily manipulated to whatever agenda the examiner wants to prove. Both proponents of the technology and its detractors have valid points to their arguments.
When Is a Polygraph Exam Admissible in Court?
The jurisdiction where the polygraph took place is the primary factor concerning the admissibility of the exam results in court. Admissibility varies widely from state to state, falling into two categories. Some states entirely disallow polygraph results in court, and others do, with the caveat that the exam results come with stipulations from parties involved with the polygraph exam.
In cases where results are admissible in court, the prosecutor and exam subject must agree on the admission of the test results. 23 states allow polygraph results as evidence in court, provided they meet these conditions.
In most instances of polygraph results being used in cases, it’s for civil rather than criminal cases. For example, job candidates are refused a position, or employees are fired from their job. A good example is in the state of Georgia, where defendants who suffer financial or reputational harm from a false failed result on a polygraph test may sue the test administrator for damages and court costs.
Some states find polygraph results entirely inadmissible in court even when all parties agree to its use. These states include Texas, New York, Pennsylvania, Washington, D.C., and Illinois. The Employee Polygraph Protection Act of 1988 is the primary driver behind the reason polygraph exam results are inadmissible in court.
However, the courts also find the lack of uniform standards applying to the use of the results in court. In most instances, it’s entirely up to the judge presiding over the case and the state laws surrounding using polygraph results as evidence.
The case of Frye v. U.S. in 1923 was the first to see the striking of polygraph results as a reliable form of evidence. In the years before the case, the courts passed the Federal Rules of Evidence (FRE), giving judges more control over the admissibility of polygraph results as evidence.
The case of Daubert v. Merrell Dow Pharmaceuticals in 1993 saw the U.S. Supreme Court rule polygraph evidence could be used in evidence if it met five factors of the “Daubert standard.” In 1998, the case of U.S. v. Scheffer saw the U.S. Supreme Court issued a statement saying polygraphs were not admissible as evidence unless the judge allowed it in line with the Daubert standard.
However, the biggest shift in policy regarding the admissibility of polygraph results in court came from the introduction of The Employee Polygraph Protection Act in June 1988. The Act applies to most civil court cases in the private sector concerning the use of polygraphs in the workplace and the admissibility of those test result in court.
It’s important to note that the law doesn’t apply to most government agencies, such as law enforcement, national security, and the defense sector.
However, it does not apply to government workers (e.g., federal, state, and local government agencies) or those hired by security firms or pharmaceutical companies. The Act also has separate definitions for “polygraph” and “lie detector” tests and what circumstances and procedures are outlawed under Federal law.
The following states will likely allow the admissibility of polygraph results based on past case authority.
Alabama
Arizona
Arkansas
California
Delaware
Georgia
Idaho
Indiana
Iowa
Kansas
Nevada
New Jersey
New Mexico
North Dakota
Ohio
Utah
Washington
Wyoming
When Are Polygraphs Inadmissible in Court?
Polygraph results are not admissible in court when the state doesn’t recognize these results as valid or when both parties to the exam do not consent to use the results in the case. The results may also be invalid if state law prohibits the use of polygraph exams in specific situations or when judges refuse the admittance of the results.
This denial of polygraph results as admissible evidence comes from studies by “experts” in the late 1980s stating polygraph results are inaccurate and often incorrect. However, it’s important to note that polygraph technology has advanced significantly since these times. The introduction of computerized systems running software governed by algorithms is not considered.
So, the Act doesn’t include the advancement in polygraph technology in the last 35 years since these studies were published. It’s clear that there should be a review of this legislation, especially since proponents of polygraph tech state its results are up to 98% accurate.
Still, the law relies on the results of dated studies stating there may be defects in the polygraph device recording the results or inherent bias from the polygraph examiner altering the test results. Polygraphs tend to provide inconsistent results due to physiological indicators implying one or more emotional responses other than a guilty answer.
Proponents of the EPPA state that other methods of gathering evidence are more effective than polygraph results at supporting the prosecutor’s case. As such, polygraph results should only appear in case evidence as the last resort in those states that accept them as evidence.
There is also speculation by proponents of the Act that, in the past, law enforcement manipulated polygraph evidence to support their case in court. Law enforcement officials may administer the test in situations where the test subject is incapable of thinking clearly or achieving a failed test. This behavior would be against the defendant’s constitutional rights.
If I’m Arrested, Can Law Enforcement Force Me to Take a Polygraph Exam?
As mentioned, The Employee Polygraph Protection Act of 1988 and state laws make forcing a person to undergo a polygraph exam illegal. The subject of the exam must willingly consent to a polygraph test, and they may not be bullied or coerced into it. They have the right to refuse the exam.
However, should you agree to willingly take the lie detector test, law enforcement may use the exam results as evidence against you in court. If you refuse to undergo the polygraph exam, the prosecuting authority may not use this fact against you in court.
There is no legal obligation forcing you to take a polygraph exam, regardless of what law enforcement officials tell you at the time of your arrest or while in holding. Finally, it must be noted that if the court refuses to admit polygraph results as evidence, the prosecutor can use a final report to support the case against you.
So, if law enforcement or the prosecuting authority attempts to coerce you into taking a lie detector test, you can contact a criminal law attorney to protect your constitutional rights.
Can I Take a Polygraph exam to Prove My Innocence?
It’s generally not recommended for suspects to take polygraph exams to prove their innocence. However, if the suspect or defendant is confident in their case, they may request a polygraph exam to prove their innocence.
It’s important to note that polygraph exams, while effective, are not viewed by most courts as reliable forms of evidence in civil or criminal cases. Prosecutors will argue that the examinee may be able to manipulate their responses to appear innocent, even if they’re guilty.
Also, suppose the defendant or suspect willingly takes the polygraph test. In that case, they may still fail due to intimidation tactics used by law enforcement during the examination that make them feel nervous. These feelings of anxiety and stress may cause them to fail, despite their innocence.
As a result, the prosecuting authority may use these test results as evidence in court, despite the suspect or defendant being innocent.
Do I Need a Lawyer If My Employer or Law Enforcement want Me to Take a Polygraph Exam?
The laws surrounding the legality of polygraph exam results being admissible in court may be challenging to navigate without the assistance of an attorney experienced in these matters. Each jurisdiction has different procedures for administering polygraph exams and interpreting the test results.
There could be clauses in the regulations that don’t apply in all states. If you have questions regarding the validity of a polygraph exam request or its results, you should speak to a criminal defense attorney immediately. Your lawyer will discuss the exam results and explain their impact on your case.
In Closing – Can I Beat a Polygraph Exam?
Some individuals may willingly take the polygraph exam to try to skew the results in their favor. There are plenty of stories of people that supposedly “beat” the polygraph. Even the law makes it seem that polygraph tech is unreliable and inconclusive, building confidence in people that they can manipulate the exam and its results.
However, polygraph technology has seen huge advancements in the 35+ years since these statements of unreliability were brought about by so-called “experts.” Today’s computerized polygraph systems are far more accurate than those used in the late 1980s and early 1990s.
Assuming you can beat a modern polygraph exam running AI algorithms is dubious, and your display of hubris will likely work against you. Not only do you have the software and systems to beat, but you also have to get around the examiner.
Today’s examiners undergo extensive training. You might wind up with an examiner with thousands of polygraph rests under their belt. They’ll know how to read the polygraph results and are experts in questioning you and identifying deceptive behavior.
Don’t assume sticking a thumbtack in your show or squeezing your sphincter will help you beat the polygraph. These old wives’ tales may have worked 40 years ago, but they are largely ineffective against modern polygraph systems. Don’t tempt fate, or it will likely work against you.
Are you applying for a job as a security guard, bodyguard, or some position in the security industry? Your employer will likely polygraph you as part of the hiring process. If you’re already involved in the security industry, you probably underwent a lie detector in your pre-employment assessment, but it won’t be the last time they’ll do it.
Security is a high-risk industry, and there’s a risk of loss of life in personnel and the clients and assets you protect. Criminals often recruit security personnel to look the other way when they plan robberies, assassinations, and other nefarious acts. The polygraph acts as a safeguard for the people you work with, your company, and your clients.
This post unpacks the specifics involved with polygraph policies in the security industry.
The Types of Security Firms
Several types of security firms are involved with protecting people and assets. If you want to make a career in the industry, you have plenty of options to apply your skillset. Here are a few of the most common types of security firms and their work.
Property & Asset Management
Industrial and residential properties hire security teams to protect the property from squatters, criminals, and other risks involved with property damage, theft, and loss of life. Commercial buildings involved in the manufacturing or distributing of goods often hire security teams to protect the property and the business from criminals that attempt robberies onsite.
Even empty buildings need protection. Squatters might decide to invade the property, or criminals might strip out fittings and pipework for sale on the black market or to scrapyards. There’s also a huge demand for residential security teams. High-net-worth individuals, celebrities, and even the average family might hire security teams to patrol their property or sign up for security firms like ADT.
Security is also necessary for safeguarding companies that hold valuable assets on site. For example, gold refineries, diamond dealers, and goods manufacturers require security teams to protect their people, property, and assets.
Protection Services
Business people, diplomats, government officials, and high-net-worth individuals often hire bodyguards and security teams to protect them while they travel. They might have death threats against them by psychopaths, or they could be taking the precautionary measure to ensure their safety while they attend events.
Guarding & Security Services
Private security companies offer residential protection services in areas where police response might not be adequate or fast enough to respond to emergencies. Security personnel involved in these operations respond to call-outs for home break-ins, home invasions, or prowlers on their property.
They also serve communities, patrolling neighborhoods and working with local law enforcement to ensure a safe space for residents. Security guards could also protect local businesses from robberies and angry people that enter the property looking to start trouble.
Risks to Security Services
Security defines a wide range of applications mentioned above. There’s a risk of loss of life to the security personnel, the people and assets they protect, and community safety. Security firms operate in an environment where they have to deal with a violent and non-violent criminal elements, and they need to ensure the safety of everyone falling under the umbrella of their team and services.
Is It Legal for Security Services to Polygraph Candidates & Employees?
Yes. The nature of business undertaken by security firms and personnel makes them a high-risk industry. As a result, they can implement pre-employment polygraph screening and institute random or specific on-the-job lie detector tests for their employees.
The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation designed to protect employees from employer abuse and misuse of polygraph policies in the workplace. Typically, it bans employers from polygraphing their staff without good reason.
However, the EPPA has loopholes in the Act, exempting employers in high-risk industries from complying with the EPPA. As a result, employers can implement the polygraph policy they see necessary to safeguard their company’s reputation, staff, and clients.
What are the Types of Polygraph Exams Used by Security Services?
Security firms have three uses for polygraph exams in the workplace. They have the option to include pre-employment screening and specific and random lie detector tests on their employees. Let’s unpack each of these areas in detail to show you the uses of the lie detector in these processes.
Pre-Employment Screening
When a security firm hires new staff, they usually do it through a recruitment agency. The agency handles the job posting, interviewing candidates, and recommending the best applicants to the prospective employer.
The candidate will meet with the HR firm or sometimes the business’s principal, depending on the nature of the job description. After an interview to see if they’re suitable, the prospective employer will arrange a polygraph exam for the candidate.
The candidate must consent to the polygraph if the employer requests it. Unlike private-sector companies that cannot use a pre-employment polygraph, security firms can use it to weed out bad actors and criminals from joining their organizations.
They don’t have to comply with the EPPA legislation, and they can use the polygraph results to determine if they want to hire the person or reject them for the position.
Random & Specific Testing
The second and third reasons for polygraph policies in security firms involve on-the-job testing. These polygraphs can be specific or random in nature. For example, the security firm may arrange a polygraph for a bodyguard if their client experiences an assassination attempt on their life and dies in the attack.
The polygraph examiner questions the bodyguard about their potential involvement in the event to see if they have any liability. Or the employer might use the polygraph to examine a security team on duty when a warehouse they were protecting was robbed.
Employers in the security industry may also institute random polygraph policies where they test their security personnel every quarter or six months. This procedure ensures that team members aren’t planning robberies, assassinations, or selling inside information to criminal groups.
How Do Security Services Implement a Polygraph Policy?
A security firm that institutes a polygraph policy will do so by hiring an attorney to handle building the legal framework around the polygraph policy. The attorney is also responsible for handling disputes between employees and the employer regarding using the polygraph in pre-employment or employment polygraph practices.
The employer also hires an independent polygraph firm to assist with outlining and executing the polygraph policy. The company appoints a qualified examiner to work with the employer’s attorney in building the policy. For example, the examiner may draft the questions involved in the exam, ensuring they comply with labor law and are related to the nature of the reasons for the test.
What Kind of Questions Does the Examiner Ask in the Exam?
The examiner builds the questions for the polygraph exam based on the type of incident involved. They are short, closed questions requiring a simple yes-or-no answer. They are specific and unambiguous, requiring no further explanation from the examinee.
The types of questions asked in the polygraph relate to the reason for the test. For instance, the types of questions asked to a candidate may differ from an employee suspected of involvement in a robbery or assassination.
The examiner collaborates with the attorney and the employer when creating the questions to ensure they’re relevant to the test. Here’s an example of the questions the examiner might ask in a pre-employment screening lie detector test.
Have you ever been accused or charged with a crime?
Have you ever lied to an employer?
When applying for this position, did you lie on your job application or resume?
Do you intend to use your position for any other reason than those stipulated by your employer?
Have you used illegal drugs or misused or abused prescription drugs in the last six months?
Do you have any outstanding debts you’re having trouble repaying?
Have you used any countermeasures in this exam to conceal lies?
The lie detector test usually consists of five to seven questions. The polygraph examiner asks the questions, looking for signs of deception by the candidate. If they suspect deception with a specific question, they’ll repeat it to confirm their suspicions.
If the candidate cannot reasonably explain why the lie detector suspects deception, the candidate fails the test.
Can the Employer Observe the Polygraph Exam?
The employer has the right to view the lie detector test when it’s in progress. However, they must watch the polygraph exam through a two-way mirror in a separate room. Only the examiner and examinee are allowed in the exam room during the test. Introducing a third party, like the employer, to the exam room may confound the test results, leading to a false positive.
What Happens If a Security Employee Fails the Exam?
In private sector companies where employees have protection under the EPPA, the employer may not use the test results to reprimand or fire the employee. However, that’s not the case with security firms. If a security guard fails the polygraph, and the employer suspects their involvement in a crime, like a robbery or assassination, they can fire the employee.
They will also likely involve law enforcement in the case and ensure the police go after the employee and bring them to justice. Depending on the state, the court may or may not admit the polygraph results into evidence if the employee goes to a criminal trial.
How Accurate Is the Polygraph Exam?
The polygraph device is incredibly accurate, and there’s little chance that the employee will be able to conceal deception from the examiner. Experts suggest the polygraph is up to 97% accurate at detecting deception in guilty individuals.
Since security issues often involve criminal activities like robberies or assassinations, the polygraph company contracted to the employer usually sends their best examiners to conduct the test. Examiners go through up to seven years of education and training before they run a polygraph exam by themselves.
An experienced examiner may have thousands of tests under their resume, and they know the signs of deception to look for in an examiner. If the examiner suspects deception, they’ll usually review the recorded footage of the session after the exam at their office. They’ll look for body language in the examinee suggesting deception.
Typically, it takes two to three days for the examiner to file their report with the employer. After receiving the report, the employer can decide the best course of action, depending on the employee’s performance in the lie detector test.
Can Security Employees Beat the Polygraph?
It’s possible for some employees to beat the test. However, they’ll need to be a pathological liar to get around the examiner and the machine. Pathological liars don’t have the same brain connections as normal people.
They lie all the time, and they don’t feel any guilt when telling lies. Many pathological liars believe their lies, so they don’t activate the “fight-or-flight” response the examiner looks for during the test. As a result, they go undetected.
However, less than 5% of the US population are pathological liars. So, the chances of the security employee being a pathological liar are slim, and the polygraph is usually capable of sniffing out deception in an examinee that’s withholding the truth.
Understanding Countermeasures and the Polygraph
There’s also the case of “countermeasures” to consider in polygraph exams. These are strategies examinees use to minimize the fight-or-flight response under examiner questioning. There are three primary types of countermeasures – informational, physical, and drug-based.
An informational countermeasure might be looking up countermeasures on the internet with the intention of using them in the polygraph exam. A physical countermeasure might be clenching your thigh muscle, biting your tongue, or curling your toes when answering a question.
These countermeasures supposedly throw off the launch of the fight-or-flight response, providing inconclusive results to the polygraph device. Drug-based countermeasures include anti-anxiety medications like Xanax and beta-blockers used by the examinee during the test. These drugs inhibit the fight-or-flight response, confusing the lie detector.
However, the bad news for liars is that these countermeasures don’t work in the modern era of polygraphy. The software-driven systems are far more advanced than those used before the 1990s when these countermeasures were developed. There’s a good chance the examiner will catch the examinee using these countermeasures, resulting in a failed exam.
Are you an employer wondering if you can use polygraphs in your pre-employment screening process? In most cases, this practice is illegal for businesses operating in the private sector. However, there are some exemptions.
Implementing a polygraph policy seems like a confusing process for many business owners, and there are specific rules governing its use. To avoid heavy financial penalties and costly lawsuits, you must ensure compliance.
A corporate attorney can assist you with planning and executing a workplace polygraph policy within the confines of the law. Polygraphs come in three categories – pre-screening for candidates and random and specific employee testing.
This post unpacks the specifics surrounding using the pre-screening polygraph and when using it in your hiring practices is legal and illegal.
Understanding the Employee Polygraph Protection Act of 1988 (EPPA)
Employers can’t use pre-screening polygraphs on candidates because of the legislation set by the “Employee Polygraph Protection Act of 1988” (EPPA). President Ronald Reagan signed this Act into power during the final days of his second term in office in 1988.
In the years leading up to the Act, American employers issued over one million pre-employment and random or specific polygraph exams every year. However, many employers were abusing polygraphs, using them to prevent hiring people they didn’t want in their company.
These unethical practices involved the employer using the polygraph to keep people of specific ethnicities out of their company. Or they would use it to eliminate employees they felt didn’t perform on the job, with the polygraph giving them the excuse they needed to fire the employee.
The US government, specifically the Labor Department, received thousands of complaints from candidates and employees stating their employer or prospective employer was abusing their polygraph policy.
As a result, Reagan signed the EPPA legislation, creating specific rules around using polygraphs in the workplace.
Are Polygraphs Illegal in Candidate Screening Processes?
One of the biggest changes brought in by the EPPA was how employers could use polygraph policies in their hiring processes. The Act outright banned its use in employee screening. As a result, employees no longer had a tool to allow them to deny employment to specific racial or ethnic groups.
The Act remains in place today, and there are stringent rules surrounding using polygraphs in pre-employment screening processes. In general, employers cannot use the polygraph to assess new candidates to their organization unless they operate in one of the industries exempted by the EPPA.
Suppose you’re an employee going for a job interview, and your prospective employer wants you to take a polygraph exam. In that case, they must operate in one of these specified industries, which we’ll talk about in a second.
If they don’t fall into one of these categories, they may not even suggest that you have to attend a polygraph, or they’re in violation of the EPPA and subject to huge financial penalties.
Are Any Industries Exempt from the EPPA?
As mentioned, some employers are exempt from complying with the legislation surrounding the EPPA. These exemptions stem from the risk presented to the business and the community if they don’t use a polygraph exam in employee pre-screening.
Some of the exempted industries include the following.
Security and guarding companies.
High-value asset transport and storage.
Pharmaceutical manufacturing and distribution.
Let’s run through an example. The employer may use a polygraph in the hiring process for security firms that operate community patrols or bodyguarding services. The reason is that they risk hiring bad actors that might infiltrate the company to learn its systems and procedures.
They’ll sell this information to criminal organizations that use it to plan robberies, home invasions, or even assassinations. By utilizing a polygraph policy, the employer prevents hiring these unsavory operators that might cause a loss of life, assets, or reputation for the company.
It’s also important to note that agencies operating in the public sector are exempt from the EPPA. The NSA, DOD, FBI, and CIA can freely use polygraphs as they see fit without the fear of blowback from the EPPA.
The reason for this is similar to the previous example we discussed. The NSA, for example, wants to avoid hiring another Edward Snowden, who might leak sensitive government data to other parties. By using the workplace polygraph, they root out these bad actors before they have a chance to gain a foothold in the organization and create chaos.
What are the Common Questions Asked in Pre-Employment Polygraphs?
The pre-employment polygraph differs from the random or specific processes instituted for employees. If the employer qualifies to implement a workplace polygraph policy incorporating pre-employment screening, they will hire an independent polygraph company to carry out the test.
The polygraph company appoints an examiner to assist the employer with setting up the polygraph policy in compliance with the EPPA. They’ll work closely with the employer and their attorney to structure the procedure, inform the staff and candidates, and execute the lie detector tests.
One of the examiner’s tasks is creating a list of questions asked during the exam. Typically, the pre-employment screening polygraph consists of five to seven questions related to the job. The examiner may not ask questions concerning the candidate’s political affiliations, religious beliefs, or other personal information.
Let’s look at an example of the questions asked in a pre-employment screening exam for a pharmaceutical manufacturing company.
Have you ever lied to an employer?
Have you ever stolen from an employer?
Have you used illegal drugs or misused prescription drugs in the last 12 months?
Have you ever been accused or charged with a crime?
Do you intend to use your position to steal from the company?
Do you have any outstanding debts you’re struggling to pay?
Have you lied to any of the questions asked in this test?
As you can see, the questions relate to drug use, lying to an employer, or stealing from them. If the candidate has outstanding debts they can’t pay, someone might tempt them into revealing company information by bribing them so they can use the information to plan a robbery.
Can Employers Use a Failed Pre-Employment Polygraph Screening to Prevent Hiring Me?
In exempted industries and private sector businesses, employers may use the results of a failed polygraph exam to deny employment to the candidate.
For instance, if the above questions we covered were asked in a test and the employee shows deception regarding their past criminal activity, the employer may use these results as grounds to deny them employment.
The last thing the employer needs is to hire a candidate with a criminal history. They could be planning a robbery, or the police may have charged them with a drug-related crime.
If the employer brings them into their pharmaceutical manufacturing business, maybe they’ll start stealing inventory to sell on the street, to organized crime cartels, or to satisfy a personal drug habit.
Why Do Employers Use Pre-Employment Polygraphs?
The pre-employment polygraph aims to assist employers with their HR processes involving hiring new candidates for their organization. If an employer posts a job opening, they might receive hundreds of applications. The HR team whittles these into the top ten candidates best suited for the position.
After they have the shortlist, the HR team meets with the candidates and finds the people they want to employ. However, the reality is that people’s professional personas are often very different from who they are as people.
The HR team doesn’t really know who they’re dealing with. The applicant could have forged their CV, lying about their qualifications. Or they might be using family members or friends for references claiming they were previous employers.
The pre-employment polygraph prevents hiring people with deceptive tendencies that could damage the organization if they earn a post at the company. The lie detector test provides a layer of security for the company, protecting them from the potential of hiring bad actors.
What Are My Rights in Pre-Employment Polygraph Exams?
While the pre-employment polygraph acts as a screening tool for employers to avoid hiring the wrong people, there are limitations to the exam and how the examiner operates in the exam room. For instance, the examiner is not an authority figure, and they have no control over you during the lie detector test.
They cannot hold you in the exam room. If you want to leave, ask the examiner to stop the test and step out. As mentioned, the examiner may not ask you any questions involving your personal life. They’re only allowed to stick to relevant questions involved in you taking a position at the company.
The examiner may only share the test results with your prospective employer. The employer must keep a record of these exams and cannot share them with other potential employers.
What Can I Do If My Prospective Employer Violates My Rights in the Polygraph Screening Process?
If the prospective employer violates your rights during or after the polygraph process, you have a right to take legal action against them.
For instance, let’s say the HR team at company A polygraphs you, and you fail. They deny you employment, and you apply to company B for a job. Company B has a relationship with company A, and the team shares information on your failed polygraph exam.
As a result, company B tells you that you failed the polygraph with Company A, and they don’t want to employ you. In this case, you would have legal recourse to file a lawsuit against both companies.
Or the prospective employer oversteps what they ask you on the test, and the examiner starts questioning your political and union associations. In this case, they would violate the EPPA, despite being exempt from many aspects of the Act.
If you suspect the prospective employer violated the EPPA or abused their pre-employment screening process, speak to a lawyer. The lawyer will assess your cases and recommend a course of action. If they feel you have a claim, you can file a complaint with the US Labor Department, which is responsible for enforcing the EPPA.
If the Labor Department investigation reveals the employer did violate the terms of the EPPA, they will fine them up to $10,000. They may also request that the company hires you.
How Do I Prepare for a Pre-Employment Polygraph Exam?
If you’re scheduled for a pre-employment polygraph, you must prepare properly for the experience. Research the polygraph before taking the exam. By understanding more about the process, you reduce your pre-exam anxiety. Study the EPPA and know your rights, and ensure the employer follows the correct procedure per the EPPA.
Stick to your routine the day before the exam. Your nervous system will remain calm if you don’t do anything out of the ordinary, reducing the potential for pre-exam jitters and a false result on the test. Don’t drink more than our regular cup or two of coffee in the morning. Caffeine is a nervous system stimulant and primes the “fight-or-flight” response.
Try to get a good night’s sleep before the exam. Take a hot bath an hour before bed and download a guided breathing meditation. Listen to the file before you go to sleep, and you’ll find you won’t be up the whole night tossing and turning.
What Can I Expect from the Pre-Employment Polygraph Exam?
You can expect the examiner to behave like a professional when you walk into the exam room. They’ll greet you and review your rights and the test’s purpose before going over the questions they ask you in the exam.
They ensure you’re relaxed and hook you up to the lie detector machine. You’ll sit on a chair facing the side of the examiner as they start the test. The questions are in yes-or-no format, and only expand on your answers if the examiner asks you to.
After you finish the lie detector test, the examiner reviews your test data later that day. They’ll give your prospective employer the results two or three days after the test, and your employer will notify you of your results. Hopefully, everything went according to plan, and you have a new job to look forward to.
Do you own a business? Do you need to implement a polygraph policy in the workplace? You may be an employee researching more on polygraphs, and you want to know more about the legality of your boss sending you for a polygraph exam.
This post discusses when employers can use polygraph policies in the workplace and the specifics surrounding the legislation involved with its fair use.
What Is the Employee Polygraph Protection Act of 1988?
The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation signed into power by Ronald Reagan in the final month of his second term in office. The EPPA prevents employers from using workplace polygraph policies in employment practices, such as pre-employment screening and random or specific cases.
Employers who want to implement a workplace polygraph policy must comply with the EPPA, or they risk violating the Act. The purpose of the EPPA is to stop employers from unjustly using polygraph exams to remove undesirable people from their organization.
For example, an employer might use a polygraph to keep people of a certain ethnicity out of their organization. This problem happened in the past, and the EPPA stopped it.
When Can a Private-Sector Employer Implement a Polygraph Policy?
A private-sector employer can implement a polygraph policy in the workplace under special circumstances. They may not use polygraphs in pre-employment screening or in random testing. However, there are exemptions in the EPPA allowing employers to use polygraph policies in the event of the following.
Experiencing a severe economic loss, such as inventory theft.
To uncover cases of fraud and embezzlement.
In sexual harassment cases.
In instances of suspected drug abuse or distribution by employees in the workplace.
Are Any Industries Exempt from the EPPA?
Some industries are exempt from the EPPA. They don’t have to comply with all the aspects of the Act due to the nature of their business. For example, nuclear power operators don’t have to abide by the EPPA concerning pre-employment, random, or specific polygraph testing. This is because these individuals work with proprietary technology in the public interest.
If a terrorist were to gain access to these facilities, they might use the opportunity to create a nuclear disaster. So, by implementing pre-employment polygraph screening, the employer can keep these bad actors out of their organization, preventing loss of life and a potential disaster that could affect millions of Americans.
These exemptions exist in companies involved in security, armored vehicle transport and asset movement, pharmaceutical manufacturing and distribution, and other sensitive industries where hiring candidates may present a threat to the company or the community.
Public-sector agencies, such as those involved in the Justice Department (US Attorney Office), national security (FBI/CIA), and others, do not have to comply with the EPPA.
How Do Employers Roll Out Employee Polygraph Policies?
If an employer decides to implement a workplace polygraph policy, they must comply with the EPPA when doing so. They cannot use the polygraph for pre-employment screening or random employee testing unless their company falls into one of the exempted categories listed by the EPPA.
However, suppose the employer is exempted or has a valid reason for implementing a polygraph policy, such as those discussed earlier. In that case, they have a right to do so. The employer starts by hiring the services of a qualified corporate attorney to assist them with handling the legal matters involved with structuring the policy.
The attorney guides the employer through the process and works with the polygraph examiner to structure the policy. The attorney is also available to protect the employer if they violate the Act and the Labor Department launches an investigation into the matter.
The employer will hire an independent polygraph company to help them structure the polygraph policy and test their employees. The examiner works closely with the attorney to plan the procedure, formulate the questions, and roll out the notification of the polygraph policy to the employees.
The examiner has a duty to the client, the employer, and the examinee (employee). They must act with the interests of both parties in mind and may not show bias toward either side. The examiner assists the employer and the employees with understanding the aspects of the EPPA involved in the test and explains to the employee their rights involved with taking the polygraph exam.
Are There Any Limitations on Employee Polygraph Exams?
An employer has certain limitations placed on instituting a workplace polygraph policy. For instance, there are limitations on when and to whom they can issue a test. One of the primary areas where the employer must adhere to constraints is in the exam format. Specifically, the limitations involve what the examiner can ask you during the lie detector test.
Before the examiner can administer the lie detector exam, your employer must read aloud the specifics of the polygraph policy and EPPA to you. They’ll also have to read aloud the questions they plan to ask you and get you to sign and date a document including the following aspects relating to the lie detector test and its execution.
The employer must provide a list of topics the examiner may not ask you about during the polygraph.
These topics include questions regarding your sexual preference, religious beliefs, racial matters, political affiliation, and lawful activities involving you with labor organizations.
The examiner and employer must inform you of your right to refuse the polygraph exam.
The employer must explain they cannot ask you to take a polygraph as a condition of employment.
The employer must explain how they’ll use the test results.
The employer must explain your legal rights regarding the test and your recourse if the employer or examiner doesn’t comply with the EPPA.
The examiner and employer have no authority over you. A private-sector polygraph is not the same as one in the public sector, and your employer cannot use it as an intimidation tactic or bully you into taking the test. During the polygraph exam, you have the right to ask the examiner to stop the test at any time, and they must comply with your request.
The examiner may not be rude or degrading to you in any manner. They must treat you with civil respect at all times. The examiner may not intimidate you during the test, and they cannot force you to reply to any of their questions using threats.
After you complete the test, the examiner will write a report on their findings and send it to your employer around two to three days later. Your employer must give you your results, but they cannot share them with anyone but you or management directly involved with your role in the company.
The employer may share the results with law enforcement if the nature of the test involves a possible criminal investigation and the exam reveals your potential involvement in it. The employer may disclose the test results in the event of receiving a court order.
The employer may not, under any circumstances, share older polygraph test results with prospective employers if they call your company asking for a reference.
Are Polygraph Results Accurate? Is there a Chance for a False Positive?
The modern polygraph is a highly accurate device. Before polygraph software and computerized systems were introduced in the 1990s, the “Keeler” polygraph was the benchmark standard for these devices. However, since it was an electromechanical device, it didn’t have the same accuracy as the modern polygraph. As a result, the machine had an accuracy rate of between 60% to 70%.
However, the introduction of algorithms and polygraph software improved test accuracy tremendously. Computer-driven polygraph machines used in the 2020s have accuracy ratings ranging between 87% to 97%. The leading software manufacturers, such as Stoelting, Axciton Systems, and Lafayette Instruments, have software that’s up to 97% accurate at detecting deception in examinees.
So, why are these systems not 100% accurate? Well, the reality is that there is still a margin of error. Polygraph machines cannot pick up deception in pathological liars. These individuals believe their lies, and they don’t experience the feeling of guilt and shame when lying.
As a result, pathological liars don’t experience the activation of the “fight-or-flight” (FoF) response initiated by the sympathetic nervous system when they lie. The examiner looks for the FoF during the lie detector test to determine if the examinee is answering deceptively.
Can My Boss Fire Me for Failing a Lie Detector Test?
Your employer cannot fire you if you fail the polygraph exam. They also may not reprimand you, remove your recent promotion or use the result to stop an imminent promotion. The employer may not use the test results to attempt to force you out of the company, and they can’t reduce your workplace experience in an attempt to get you to leave of your own accord.
These actions result in a direct violation of the EPPA, and you have a right to take legal recourse against the employer for their actions. Essentially, there is no action the employer can take against you for failing a polygraph. However, if your failure implicates you in a possible crime against the company, the employer can share their suspicions and your polygraph results with the police.
What Do I Do If I Think My Employer Violated the EPPA?
If you think your employer violated your rights under the EPPA, you can take formal legal action against them. The US Department of Labor enforces the Employee Polygraph Protection Act, and you can contact the Labor Department’s Wage and Hour Division for free advice on how to proceed.
If you feel your employer violated the EPPA, the best course of action is to speak with an attorney who can navigate the filing process with the US Labor Department on your behalf. There’s no paperwork involved with filing with the Labor Department, but an attorney can give you more advice if you can’t get ahold of a Wage and Hour Division investigator.
An attorney can also safeguard you from further employer harassment after filing with the Department. You’ll write a letter to your local Wage and Hour Division office to file a complaint. Your letter must include the name and address of your employer’s premises, your contact details, and the date the incident occurred. Remember to keep a copy of the letter for your records.
The Labor Department investigates the matter, and if they find your employer violated the Act, they are subject to a $10,000 fine for each infringement. The Department will also issue an injunction to your employer, ordering them to reinstate you if they fire you for failing the polygraph test.
The employer is also liable for any lost wages during the dismissal period. If the Labor Department’s investigation is unsatisfactory, you can use your attorney to file a lawsuit against your employer. If that’s the case, you must file the lawsuit within three years of the violation date. If you win your case, the court will usually order your employer to pay your legal fees and other costs involved with proceeding with your case.
What are the State Laws on Polygraph Exams?
The laws regarding employers’ use of polygraph exams vary from state to state. While all employees have protection under the EPPA, some states institute additional requirements for employers when designing and rolling out polygraph policies.
Some states may forbid employers from using polygraph policies at all. Just mentioning their intention to polygraph them or requesting to do so can have severe legal consequences for the firm. State coverage may have a broader reach; while Federal laws don’t apply to local government and state employees, many state statutes do.
It’s important to note that several state laws provide an employee who voluntarily submits to their employer’s request to take a polygraph exam may do so if they wish. However, these laws have safeguards for employees, requiring the employer to administer the lie detector test under approved, supervised conditions.
These employee polygraph exams must clearly stipulate how the employer intends to use the test results.
Explore More on Polygraph Policies and Employee Rights
For further insights into polygraph tests and workplace policies, explore these related articles:
Do you own a business? Do you need to implement a polygraph policy in the workplace? You may be an employee researching more on polygraphs, and you want to know more about the legality of your boss sending you for a polygraph exam.
This post discusses when employers can use polygraph policies in the workplace and the specifics surrounding the legislation involved with its fair use.
What Is the Employee Polygraph Protection Act of 1988?
The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation signed into power by Ronald Reagan in the final month of his second term in office. The EPPA prevents employers from using workplace polygraph policies in employment practices, such as pre-employment screening and random or specific cases.
Employers who want to implement a workplace polygraph policy must comply with the EPPA, or they risk violating the Act. The purpose of the EPPA is to stop employers from unjustly using polygraph exams to remove undesirable people from their organization.
For example, an employer might use a polygraph to keep people of a certain ethnicity out of their organization. This problem happened in the past, and the EPPA stopped it.
When Can a Private-Sector Employer Implement a Polygraph Policy?
A private-sector employer can implement a polygraph policy in the workplace under special circumstances. They may not use polygraphs in pre-employment screening or in random testing. However, there are exemptions in the EPPA allowing employers to use polygraph policies in the event of the following.
Experiencing a severe economic loss, such as inventory theft.
To uncover cases of fraud and embezzlement.
In sexual harassment cases.
In instances of suspected drug abuse or distribution by employees in the workplace.
Are Any Industries Exempt from the EPPA?
Some industries are exempt from the EPPA. They don’t have to comply with all the aspects of the Act due to the nature of their business. For example, nuclear power operators don’t have to abide by the EPPA concerning pre-employment, random, or specific polygraph testing. This is because these individuals work with proprietary technology in the public interest.
If a terrorist were to gain access to these facilities, they might use the opportunity to create a nuclear disaster. So, by implementing pre-employment polygraph screening, the employer can keep these bad actors out of their organization, preventing loss of life and a potential disaster that could affect millions of Americans.
These exemptions exist in companies involved in security, armored vehicle transport and asset movement, pharmaceutical manufacturing and distribution, and other sensitive industries where hiring candidates may present a threat to the company or the community.
Public-sector agencies, such as those involved in the Justice Department (US Attorney Office), national security (FBI/CIA), and others, do not have to comply with the EPPA.
How Do Employers Roll Out Employee Polygraph Policies?
If an employer decides to implement a workplace polygraph policy, they must comply with the EPPA when doing so. They cannot use the polygraph for pre-employment screening or random employee testing unless their company falls into one of the exempted categories listed by the EPPA.
However, suppose the employer is exempted or has a valid reason for implementing a polygraph policy, such as those discussed earlier. In that case, they have a right to do so. The employer starts by hiring the services of a qualified corporate attorney to assist them with handling the legal matters involved with structuring the policy.
The attorney guides the employer through the process and works with the polygraph examiner to structure the policy. The attorney is also available to protect the employer if they violate the Act and the Labor Department launches an investigation into the matter.
The employer will hire an independent polygraph company to help them structure the polygraph policy and test their employees. The examiner works closely with the attorney to plan the procedure, formulate the questions, and roll out the notification of the polygraph policy to the employees.
The examiner has a duty to the client, the employer, and the examinee (employee). They must act with the interests of both parties in mind and may not show bias toward either side. The examiner assists the employer and the employees with understanding the aspects of the EPPA involved in the test and explains to the employee their rights involved with taking the polygraph exam.
Are There Any Limitations on Employee Polygraph Exams?
An employer has certain limitations placed on instituting a workplace polygraph policy. For instance, there are limitations on when and to whom they can issue a test. One of the primary areas where the employer must adhere to constraints is in the exam format. Specifically, the limitations involve what the examiner can ask you during the lie detector test.
Before the examiner can administer the lie detector exam, your employer must read aloud the specifics of the polygraph policy and EPPA to you. They’ll also have to read aloud the questions they plan to ask you and get you to sign and date a document including the following aspects relating to the lie detector test and its execution.
The employer must provide a list of topics the examiner may not ask you about during the polygraph.
These topics include questions regarding your sexual preference, religious beliefs, racial matters, political affiliation, and lawful activities involving you with labor organizations.
The examiner and employer must inform you of your right to refuse the polygraph exam.
The employer must explain they cannot ask you to take a polygraph as a condition of employment.
The employer must explain how they’ll use the test results.
The employer must explain your legal rights regarding the test and your recourse if the employer or examiner doesn’t comply with the EPPA.
The examiner and employer have no authority over you. A private-sector polygraph is not the same as one in the public sector, and your employer cannot use it as an intimidation tactic or bully you into taking the test. During the polygraph exam, you have the right to ask the examiner to stop the test at any time, and they must comply with your request.
The examiner may not be rude or degrading to you in any manner. They must treat you with civil respect at all times. The examiner may not intimidate you during the test, and they cannot force you to reply to any of their questions using threats.
After you complete the test, the examiner will write a report on their findings and send it to your employer around two to three days later. Your employer must give you your results, but they cannot share them with anyone but you or management directly involved with your role in the company.
The employer may share the results with law enforcement if the nature of the test involves a possible criminal investigation and the exam reveals your potential involvement in it. The employer may disclose the test results in the event of receiving a court order.
The employer may not, under any circumstances, share older polygraph test results with prospective employers if they call your company asking for a reference.
Are Polygraph Results Accurate? Is there a Chance for a False Positive?
The modern polygraph is a highly accurate device. Before polygraph software and computerized systems were introduced in the 1990s, the “Keeler” polygraph was the benchmark standard for these devices. However, since it was an electromechanical device, it didn’t have the same accuracy as the modern polygraph. As a result, the machine had an accuracy rate of between 60% to 70%.
However, the introduction of algorithms and polygraph software improved test accuracy tremendously. Computer-driven polygraph machines used in the 2020s have accuracy ratings ranging between 87% to 97%. The leading software manufacturers, such as Stoelting, Axciton Systems, and Lafayette Instruments, have software that’s up to 97% accurate at detecting deception in examinees.
So, why are these systems not 100% accurate? Well, the reality is that there is still a margin of error. Polygraph machines cannot pick up deception in pathological liars. These individuals believe their lies, and they don’t experience the feeling of guilt and shame when lying.
As a result, pathological liars don’t experience the activation of the “fight-or-flight” (FoF) response initiated by the sympathetic nervous system when they lie. The examiner looks for the FoF during the lie detector test to determine if the examinee is answering deceptively.
Can My Boss Fire Me for Failing a Lie Detector Test?
Your employer cannot fire you if you fail the polygraph exam. They also may not reprimand you, remove your recent promotion or use the result to stop an imminent promotion. The employer may not use the test results to attempt to force you out of the company, and they can’t reduce your workplace experience in an attempt to get you to leave of your own accord.
These actions result in a direct violation of the EPPA, and you have a right to take legal recourse against the employer for their actions. Essentially, there is no action the employer can take against you for failing a polygraph. However, if your failure implicates you in a possible crime against the company, the employer can share their suspicions and your polygraph results with the police.
What Do I Do If I Think My Employer Violated the EPPA?
If you think your employer violated your rights under the EPPA, you can take formal legal action against them. The US Department of Labor enforces the Employee Polygraph Protection Act, and you can contact the Labor Department’s Wage and Hour Division for free advice on how to proceed.
If you feel your employer violated the EPPA, the best course of action is to speak with an attorney who can navigate the filing process with the US Labor Department on your behalf. There’s no paperwork involved with filing with the Labor Department, but an attorney can give you more advice if you can’t get ahold of a Wage and Hour Division investigator.
An attorney can also safeguard you from further employer harassment after filing with the Department. You’ll write a letter to your local Wage and Hour Division office to file a complaint. Your letter must include the name and address of your employer’s premises, your contact details, and the date the incident occurred. Remember to keep a copy of the letter for your records.
The Labor Department investigates the matter, and if they find your employer violated the Act, they are subject to a $10,000 fine for each infringement. The Department will also issue an injunction to your employer, ordering them to reinstate you if they fire you for failing the polygraph test.
The employer is also liable for any lost wages during the dismissal period. If the Labor Department’s investigation is unsatisfactory, you can use your attorney to file a lawsuit against your employer. If that’s the case, you must file the lawsuit within three years of the violation date. If you win your case, the court will usually order your employer to pay your legal fees and other costs involved with proceeding with your case.
What are the State Laws on Polygraph Exams?
The laws regarding employers’ use of polygraph exams vary from state to state. While all employees have protection under the EPPA, some states institute additional requirements for employers when designing and rolling out polygraph policies.
Some states may forbid employers from using polygraph policies at all. Just mentioning their intention to polygraph them or requesting to do so can have severe legal consequences for the firm. State coverage may have a broader reach; while Federal laws don’t apply to local government and state employees, many state statutes do.
It’s important to note that several state laws provide an employee who voluntarily submits to their employer’s request to take a polygraph exam may do so if they wish. However, these laws have safeguards for employees, requiring the employer to administer the lie detector test under approved, supervised conditions.
These employee polygraph exams must clearly stipulate how the employer intends to use the test results.
Is your employer preparing a polygraph policy for the office? There’s chatter around the water cooler that the boss wanted to get to the bottom of the inventory theft last week, and she’s considering polygraphing the team to find the culprit.
Is it even legal to institute a polygraph policy in the workplace? What are your rights as an employee regarding taking a lie detector test? It’s a confusing and stressful situation for the team, and everyone in the office feels on edge about it.
The reality is the polygraph isn’t as bad as you think. Your boss isn’t going to drag you into a dark room, strap you to a chair and grill you for hours on end. The media makes lie detector tests seem more carry than they actually are.
Most employers use polygraph policies to make the workplace a safer space for everyone on the team. That said, there are things they can and can’t do when instituting a polygraph policy. Your boss needs to follow a specific protocol to ensure they don’t get in trouble with the US Labor Department for their use of lie detectors in the workplace.
This post looks at the specifics of the law protecting you from your employer abusing the polygraph in the workplace. We’ll show you the legalities of using lie detectors at work and when your boss violates the legislation protecting you from abusive polygraph practices.
What Is the Employee Polygraph Protection Act?
The “Employee Polygraph Protection Act of 1988” (EPPA) is a piece of legislation designed to prevent employers from misusing the lie detector test in the workplace. It affects most companies operating in the private sector, and your organization may or may not have to comply with it.
The polygraph is a hotly disputed technology in business and in legal proceedings. While the justice system decided that polygraph results aren’t useful in court proceedings, many private and public-sector organizations still use them in monitoring their staff.
For example, the Federal Government’s frequent use of polygraph testing during the 1960s led to over 63,000 screenings in 1963 alone. Its popularity in organizations like the CIA and FBI caught the attention of Congress, causing them to ask for further investigation into the technology, its uses, and its validity.
Directive 5210.48 from the Department of Defense was issued in 1965, with the DOD revising it in 1984. The directive aimed to regulate how Federal organizations used polygraph testing and design specific testing procedures.
The 1970s and 1980s saw a drop in the use of polygraph exams, promoting the Federal government to take more interest in its use in employee and tactical screening processes. In the early 80s, Government agencies, specifically those involved in the intelligence community, experienced several leaks of classified information.
As a result, President Ronald Reagan issued the National Security decision directive 84 during his first term in office in 1983. The directive saw the implementation of polygraph screening policies for Federal employees in the event of internal intelligence leaks.
In 1986, the Department of Defense issued the Authorization Act of 1986, broadening this directive. The Act added to the power of Federal organizations’ use of polygraph examinations in extreme circumstances involving the leaking of classified information.
However, many experts started bringing up issues with the accuracy of the polygraph. They stated there was no scientific evidence pointing to the reliability of the polygraph in these testing scenarios. As a result, The House of Representatives launched the “Federal Polygraph Limitation and Anti-Censorship Act” in 1984 to combat President Reagan’s directive.
Congressional departments, like the Office of Technology Assessment, conducted evaluations of polygraph accuracy. Secretary of State, George Shultz, criticized Reagan in the final days of his first stint in office after the President declined to take a polygraph himself.
The increasing discord against using the polygraph in private and public-sector industries led to Reagan establishing the “Employee Polygraph Protection Act,” signing it into power during the final days of his second term.
The EPPA prohibits employers from using polygraphs in pre-employment screening processes for candidates. At the time, more than a million of these exams took place in private-sector businesses each year in the United States.
Are There Exemptions to the Employee Polygraph Protection Act?
However, despite the EPPA being legislation preventing private-sector employers from using polygraphs in pre-employment and on-the-job screening practices, it didn’t apply to public-sector organizations. Agencies like the FBI, CIA, NSA, and DOD were permitted to carry on their use of the polygraph in their operations.
The EPPA also allowed exemptions from the Act for certain private-sector businesses. Organizations involved in high-risk industries, such as security, nuclear power plant operations, pharmaceutical distribution and manufacturing, and high-value asset transport and storage, were exempt from complying with the EPPA.
The idea behind these exemptions was to prevent criminal elements from entering these organizations where they might harm the company by collaborating with criminals. For instance, a drug addict joining a pharmaceutical manufacturing company could have disastrous results for the organization, resulting in potential inventory theft or robberies.
All other private-sector employers were prohibited from using polygraphs in pre-screening practices for job candidates. However, the EPPA did provide an exemption for these employers to use polygraph policies in the event of severe employee-related outcomes at their organization.
If the employer experienced a large theft presenting an economic risk to the company, they could use a polygraph policy to find the perpetrator. Likewise, the employer could implement a polygraph policy in the case of discovering fraud at their organization, sexual harassment cases, or suspected drug abuse in the workplace.
If an employer decides to implement a workplace polygraph policy, they must follow strict guidelines set by the EPPA when rolling it out. Failing to do so places them in violation of the EPPA, exposing their business to massive financial penalties.
Guidelines for Private-Sector Employers Instituting a Polygraph Policy
Here are some general guidelines the employer must follow when implementing a workplace polygraph policy. Failure to comply with them violates the EPPA, leading to severe penalties for the company.
The polygraph must be part of an ongoing investigation into a valid matter.
The employer must understand the use of the Employer Polygraph Protection Act.
The employer must present the employee with a document signed by an authorized person legally representing the employee that is not the examiner.
The employer must read the “Notice to Examinee” to the employee aloud.
The employee must sign and date the document, which must be witnessed.
The employers must provide at least 48 hours notice of their intention to polygraph the employee.
The employer must provide the employee with the exam’s date, time, and location.
The employer must maintain records for a minimum of three years.
Employees cannot waive their rights.
Police and investigators cannot share the polygraph results, and employers cannot use or inquire about polygraph results.
Employers must check the polygraph examiner’s credentials and documentation of licensing and liability insurance.
The employee must receive all documents on company letterheads.
A corporate attorney must ensure compliance with the EPPA.
Guidelines for Examiners Conducting Private-Sector Polygraph Exams
The employer collaborates with an accredited polygraph company when planning their polygraph policy. The polygraph company appoints an examiner to assist clients with structuring the polygraph policy and executing the lie detector tests. The examiner must also adhere to strict EPPA guidelines when instituting the test.
Here are some examples of examiner duties to employees and employers.
Provide employers with copies of the EPPA guidelines.
The examiner cannot assist employers in determining which employees to test.
The examiner must give the employee a written clarification of the testing procedures.
The employee must sign and date the document.
The examiner must read aloud the employee’s rights and answer all questions the employee has regarding the test.
The examiner must advise the employee of their employer’s intention, if any, to view the session through a 2-way mirror or the video recording of the exam.
The examiner must have a minimum of $50,000 liability coverage.
The examiner must provide the employee with the test questions in writing and have the employee write out their answers and sign the document.
The examiner must share the test results with the employee and allow an opportunity to explain their reactions.
The examiner must provide a written report declaring the employee’s non-deception or deception.
The examiner must keep copies of documents for a minimum of three years.
The examiner must provide the employer with documents when test results are deceptive.
The examiner must provide the Department of Labor with these copies within 72 hours after conducting the lie detector test.
What Constitutes a Violation of the Employee Polygraph Protection Act of 1988?
So, what constitutes a violation of the EPPA? Here are the seven ways the employer and examiner can violate the employee or candidate’s rights during the polygraph exam.
Requesting, requiring, causing, or suggesting the employee or candidate must take a polygraph exam. Or accepting, using, referring, or inquiring about the test results of any candidate or employee other than those provided in the Act or part 801.
Discriminating against the candidate or employee or taking adverse reactions against them based on their refusal to comply with the request to take a polygraph exam.
Retaliating or discriminating against the candidate or employee for exercising the right afforded to them by the EPPA.
Disclosure of information from the polygraph exam except as authorized by the EPPA or part 801.
Failing to maintain the records and documents of the test.
Opposing, resisting, intimidating, impeding, or interfering with officials from the Department of Labor during an investigation of violations.
Violating other provisions of the EPPA or part 801.
Can an Employer Fire Me or Reprimand Me for Failing a Polygraph?
The EPPA protects the employee from any employer misconduct in the event of a failed test. If the employee fails their polygraph exam, there’s little the employer can do about it. They can’t fire the employee or reprimand them in any manner; doing so violates the EPPA, and they can get in serious trouble.
The employer can’t suspend the employee, dock their pay, or intimidate them into leaving the company. If the employer tries to make life at work uncomfortable for the employee if they refuse the exam or fail the test, they have legal recourse against them.
The EPPA favors the employee over the employee in this case and prevents the employer from taking any action against them in case of a failed test. However, suppose the employee fails the test regarding a criminal investigation. In that case, the employer may refer the test results to the police and start criminal proceedings against them to bring them to justice.
What Do You Do If Your Employer Violates the Employee Polygraph Protection Act?
If you feel your employer violated the terms of the EPPA, you have a case against them. You can seek legal representation, and your lawyer can file an official complaint with the US Labor Department.
The Secretary of the Labor Department is obliged to investigate any complaints against the employer, and they’ll look into the matter.
The US Labor Department takes any complaints seriously, and you can rely on them to investigate the employer and the examiner responsible for conducting the test.
What are the Penalties Involved with Violating the Employee Polygraph Protection Act?
The penalties involved with employers violating the EPPA are severe and have a huge financial cost to the company. If the Department of Labors investigation reveals the employer is in violation, they’re subject to a $10,000 fine for their transgression.
This fine applies to each violation. So, for instance, if four employees file complaints against the employer and the DOL finds them guilty of a violation, they’ll have to pay $40,000 in fines. That’s a huge financial liability for the employer, and it could place their company at risk of financial problems from the fallout.
So, you can expect your employer to follow the EPPA guidelines when implementing their polygraph policy. Failing to do so presents a massive risk to their business.
Book your lie detector test now! Whether it’s for workplace investigations or personal reasons, our certified examiners ensure a smooth, confidential process. Don’t let uncertainty linger—schedule your polygraph test today and get the answers you need. Contact us to set up your appointment.
Are you applying for a new job? If so, your prospective employer might ask you to take a polygraph exam as a pre-condition of your employment application. Is it legal for them to ask you to comply with this request?
When Is a Pre-Employment Polygraph Necessary?
If a prospective employer asks you to undergo a polygraph exam, they do so to ensure you’re the right fit for the company. The lie detector test determines if you have a criminal history presenting a security or financial threat to the organization and its staff.
Without asking you to take a polygraph, the employer has no idea if you are a genuine applicant or a criminal. You could be someone sent from the competition to commit industrial espionage; you might be thinking about planning a robbery or executing other criminal activities after your hiring.
The pre-employment polygraph is part of the HR screening process to find suitable applicants. Don’t assume that it’s only you that they polygraph. If the employer asks you to comply with their request, they have a polygraph policy used in the hiring process, and they use it to screen all applicants.
Is It Legal to Use a Pre-Employment Polygraph?
In 1988, President Ronald Reagan signed the “Employee Polygraph Protection Act” (EPPA) into power. The purpose of the EPPA was to regulate how the private sector implements polygraph policies in the workplace. Until the release of this legislation, employers would abuse polygraph policies to keep undesirable candidates out of their organization without any valid reason.
For instance, the company’s owner might be prejudiced against people of a specific race applying for a job at their organization. They would use the polygraph to ensure they failed and have an excuse not to hire them. The EPPA did away with these unfair hiring practices, forbidding the use of polygraphs in pre-employment screening.
However, there is a loophole in the Act.
The EPPA exempted certain industries from compliance with the Act due to the nature of the business. For instance, companies involved in pharmaceutical manufacturing and distribution are exempt.
The reason for this loophole in the EPPA is to prevent people like drug addicts and organized crime members from entering companies. Can you imagine what could occur if a drug manufacturing company hired an opioid or methamphetamine addict? What if they got access to the Adderall and Oxycodone storage facility?
The same exemption exists for security companies, such as those guarding diplomats or high net-worth individuals. What if a criminal gained access to this organization and arranged an assassination. Likewise, high-value asset storage, retail, and transit companies are exempt from the EPPA. What if a criminal gained access to the company and planned a robbery?
The EPPA doesn’t apply to many public-sector organizations either. For instance, the FBI, NSA, CIA, and DOD can polygraph candidates, and they do. However, if you’re not applying for a job with any of the above-listed companies and organizations, you have protection from the employer using polygraph policies in their hiring practices.
Your Prospective Employer Notifies You of Your Polygraph Exam Date
So, what happens if you’re applying at a firm using a polygraph policy to screen candidates? You’ll have to give your permission for them to screen you first. If you commit to taking the lie detector test, the company will arrange your polygraph exam.
According to the EPPA, the prospective employer must give you at least 48 hours notice before the intended exam date. However, unless you’re dealing with a company urgently looking for people, you can expect most employers to give you around a week’s notice before your exam date.
The employer collaborates with a polygraph provider to issue the lie detector test. If employers have suitable facilities, they’ll usually arrange the exam at their offices. However, some employers might not have the space or appropriate facilities to accommodate the exam.
If that’s the case, you’ll go to a third-party venue recommended by the polygraph company. Typically, these organizations have facilities to conduct the lie detector test at their offices.
Signing Paperwork and Receiving Documents
After receiving notice of your exam, you’ll meet with the employer and the polygraph examiner. They walk you through the details of the test and how it happens from start to finish. According to the EPPA, the employer must issue you a copy of your rights relating to the EPPA and your polygraph exam.
They’ll need to give you a copy of the questions the examiner will ask you during the session. So, the good news is you’ll know what they’ll ask during the exam. The examiner may not differ from the questionnaire during the lie detector test.
You’ll need to sign a bunch of paperwork saying you consent to the polygraph test. All this is above board, and it’s to protect the employer and show they complied with the EPPA legislation surrounding the correct administration of the exam. You’ll also receive copies of everything you sign.
On the Day – Waiting for Your Exam
When the day of your exam rolls around, you’ll make your way to the venue, either at the employer’s or examiners’ premises. Make sure you arrive at least 15 to 20 minutes early. This strategy gives you time to prepare your headspace before taking the test.
The reality is, taking a polygraph exam is an unsettling experience, especially if it’s your first test. Even though you know the questions and have nothing to hide, you’ll still feel nervous. People fear the unknown, and it causes us to subconsciously activate the sympathetic nervous system (SNS). The SNS is responsible for launching the “Fight-or-Flight” response (FoF).
If you have to lie in the polygraph room to cover up something, the SNS launches the FoF as an instantaneous response to what it considers a threat to your safety and survival. The FoF is what the examiner looks for during the test.
So, arriving early at the exam venue is a good idea. Use the time to do a guided breathing meditation on your phone. This practice settles your mind, making you feel less nervous.
Meeting the Polygraph Examiner
When it’s time to take the test, you enter the exam room and meet the examiner hosting your polygraph test. They’ll behave professionally and be friendly with you. One of their roles in the process is to ensure you feel comfortable before taking the test.
They don’t want you feeling anxious, which creates a possible conflict with the polygraph machines’ analysis of your physiological response to their questions. The examiner will run you through the exam parameters again and the questions they’ll ask you.
At this point, you’ll have the opportunity to ask the examiner any questions you have about the exam. As a footnote, it’s a good idea to research as much as you can about the polygraph and what happens during the exam before test day.
By learning more about the polygraph and what to expect, you reduce the fear of the unknown and the uncertainty around the lie detector test. Asking questions you fear might trip you up in the exam only serves to ensure you get accurate test results.
For example, if you have a history of drug use, you’ll have to tell the examiner when you used the drugs last. So, let’s say you used to smoke marijuana when you were a kid but haven’t touched it in a decade; you can disclose this to the examiner if you wish.
Keeping with this example, if the examiner asks you, “have you used illegal drugs in the last 18 months?” during the exam, you answer no, but your brain might think back to when you smoked as a youth. As a result, it activates the FoF response, creating a false positive, despite you no longer using the drug.
Prepping You for the Lie Detector Test
When you’re comfortable and ready to take the test, the examiner hooks you to the polygraph instruments. They’ll strap a corrugated rubber tube to your chest and abdomen. These instruments measure your respiration rate during the exam.
They’ll attack three sensors in your fingers that monitor your pulse rate, sweat gland activity, and skin electrical response to their questions. Finally, they’ll attach a blood pressure cuff to your upper arm. These instruments measure your physiological response to the questions they ask during the lie detector test.
If you lie and the SNS activates the FoF, these instruments pick up the changes in your vital signs. The instrumentation connects to a control box that plugs into the examiner’s laptop. Their PC runs a polygraph software program that interprets the electrical feedback from the control box linked to the instruments on your body.
When the test begins, the physiological feedback from your body presents on the software program as charts. The examiner has extensive training and experience monitoring them for signs of deception.
How the Exam Works – Questions & Responses
The polygraph examiner starts the test when you’re ready to go and hooked up to the instruments and software. They’ll begin by asking you some control questions to establish a baseline for your physiological response. These questions might be your name and if you understand why you’re taking the test today.
All the questions asked by the examiner require yes-or-no answers. You won’t have to expound on your questions, and it’s best if you don’t. You can expect the examiner to repeatedly ask the same five to seven questions during the exam.
They’ll analyze your answers and physiological response through their screen. If they detect possible deception, they keep asking you the question. If you continue to display deceptive behavior, they’ll ask you why you think the device is flagging your answer. They won’t outright accuse you of lying.
So, moving back to our previous example of smoking pot. Let’s assume you didn’t disclose your prior drug use before the test. In this case, they might say, “I noticed you have a reaction to the question regarding drug use. What do you think is causing this issue?”
You can then let the examiner know your previous experience with cannabis. This won’t apply to the test results. They’ll likely say, “Have you ever used illegal drugs outside of what you’ve disclosed to me now?”
You’ll reply “no” to the answer, and the polygraph software will detect your response as truthful because you won’t raise your FoF response. After you complete the test, the examiner will disconnect the instrumentation from your body, thank you for your time, and ask you to leave the exam room.
How You’ll Feel After the Polygraph Exam
You’ll likely feel relieved after finishing the exam, provided you have nothing to hide. People react differently to completing the test. As the SNS ramps down the FoF now that the threat subsides, it’s common for some people to feel an “endorphin rush.”
So, you might feel happy and lightheaded from being pleased with your performance. However, some people might still find they feel stressed. If that’s the case, go outside and get some fresh air. Take deep breaths and breathe out slower than you inhale. You’ll find this strategy calms you down in a few minutes.
When Do You Receive the Test Results?
The examiner won’t tell you if you passed or failed the exam after you finish. The reason is that they review your test data later at their office in the afternoon. If they suspect you of being deceptive, they’ll check the video footage of the session and consult with their colleagues on their opinion of if you’re acting deceptively during the test.
When the examiner is confident of their test result, they’ll write a report to your employer. This report will include any irregularities they come across in the exam review. The employer receives your test results via email, and the examiner won’t contact you.
The employer contacts you with your test results around 48 to 72 hours after taking your exam. They are not permitted to share your test results with anyone, and they don’t have copies of the test data on file, only the report the examiner sends them.
That’s it – you’re finished with the polygraph exam. Hopefully, you passed and have a new job to look forward to.
Are you scheduled for a polygraph exam? Maybe you’re taking a pre-employment lie detector test, or your boss is screening the staff because of inventory theft. Regardless of the reason for the exam, undergoing a polygraph is an unnerving experience for most people.
We put together this post to give you some tips on successfully making it through the lie detector exam. However, we must warn you that our suggestions are for people with nothing to hide. If you’re guilty of something, there’s a 97% chance the polygraph will reveal anything you try to hide during the exam.
Understanding the Reasons for Polygraph Testing in the Workplace
Employers use polygraphs as part of their HR processes when hiring people and testing their current employees. The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation stipulating what employers can and can’t do when implementing a workplace polygraph policy.
If employers violate these rules, they risk the US Labor Department investigating the matter if they receive a formal complaint from an employee or candidate. Violating the EPPA results in huge fines for the business, which may jeopardize its finances and ability to continue operations.
Let’s look at the reasons why employers use polygraph policies and the legality behind them.
Pre-Employment Screening
The introduction of the EPPA largely did away with employers’ ability to use lie detector tests in pre-employment screening. Before the introduction of the Act, companies would unfairly use polygraphs to turn away candidates they didn’t want to work for their firm. They would claim the polygraph results forced them to decline their application when the real reason was they didn’t like the applicant’s race or ethnicity.
While the EPPA curtailed these practices, certain loopholes allow companies in specific industries to implement workplace polygraph policies. For instance, firms involved in security, high-value asset transport and storage, and pharmaceutical manufacturing and distribution can use the pre-employment polygraph as part of the hiring process.
The reason for these industries being able to use polygraphs is to prevent criminals or bad actors from entering the organization. For instance, an armed cash transportation business wouldn’t want to hire a suspected bank robber who might plan an armed robbery using information they learn on the job.
Random or Specific Testing
The EPPA also protects employees from their employers using polygraphs on them for random testing at work. However, there are provisions in the Act allowing employers to implement polygraph policies in the event of specific circumstances occurring at their organization.
For instance, if an employee claims their colleague sexually harassed them, it’s a big deal for the company. However, they might be falsely accusing their co-worker in an attempt to get them fired because of a personal dispute.
Or the company might experience an inventory theft, presenting a significant economic loss to the business. In these cases, a polygraph can assist the employer with judging the validity of the employee’s SH allegations or uncovering the thief responsible for the missing inventory.
However, employees have a right, under the EPPA, to refuse their employer’s request to take the exam. If the employer pressures them into taking the test or reprimands them for their choice, they violate the EPPA.
What Can You Expect from the Polygraph Exam Session?
Most people don’t have any experience with taking a polygraph exam. So, their fear of the unknown causes them to feel nervous about taking the test. That’s a natural response; we don’t like being in situations we know nothing about, especially when it may potentially affect our work and livelihood.
The polygraph analyzes the examinee’s responses to the polygraph examiner’s questions. You’ll have to sign paperwork saying you consent to the test before you take it, and the employer must give you at least 48 hours notice of the test.
On test day, you’ll arrive at the exam room and sit in a high-back chair to the examiner’s side. They’ll connect you to the instrumentation that monitors your vital signs before connecting those apparatus to their laptop.
The polygraph exam looks for activating the “fight-or-flight” (FoF) response during the test to determine whether you behave deceptively. The FoF is an autonomic stress response, and its impossible to control it consciously.
The stress of the situation combined with the need to lie triggers the FoF when the examiner asks you a question to which you have to respond with a lie. They’ll keep asking the question and note your responses. In a nutshell, you fail the test if you can’t explain why you produce this physiological response.
However, with the right preparation for the test, you’ll ensure the polygraph gets an accurate reading of your responses and the best outcome possible.
How to Prepare for the Polygraph Exam
Proper preparation is the key to successfully passing your polygraph exam. Read up all you can about the test the day before our exam. Learning how the polygraph works will eliminate the fear of the unknown. You’ll find that this strategy dramatically reduces the nerves you feel around taking the test.
It’s not illegal or against the polygraph policy to research how it works; the examiner will appreciate it if you take the time to do it. The next tip is to stick to your routine. Don’t do anything out of the ordinary the day before your exam. For instance, going out partying the night before the test is a bad idea.
Instead, get a good night’s sleep, go to bed, and wake up normally. Download a guided meditation from YouTube and listen to it on your phone the night before your test to help you fall asleep.
Repeat this the next day in the 30 minutes before taking your exam. When you enter the exam room to take the lie detector test, speak to the examiner about any questions you have – they’re there to make you feel comfortable with the process.
7 Tips for Success with Employment Polygraph Tests
Ow that you know how to prepare properly for the polygraph exam, let’s run through seven tips to ensure you have the best experience possible and the best chances of a successful outcome.
Tip #1 – Be Honest
The first tip is the most obvious – be honest with the examiner. You’ll receive a copy of the examiner’s questions before taking the test. If one of the questions makes you feel nervous, ask them about it. For instance, one of the questions might be, “have you used illegal drugs or abused prescription medication in the last 18 months?”
You might have been addicted to prescription painkillers five years ago and had to go to rehab to kick the habit. While that was longer than 18 months ago, you’re worried about how you might respond to the lie detector when asked this question.
The examiner will listen to you unpack the details of your drug use and your recovery. When they reach the question, they modify it to something like, “besides what you told me about your previous drug use, have you used any other illegal drugs or abused or misused any other prescription medication in the last 18 months?”
The phrasing of the question and your disclosure won’t activate the FoF; you’ll pass that question because of your honesty.
Tip #2 – Don’t Over Complicate Answers
The lie detector exam involves the examiner asking you five to seven questions regarding the parameters they discuss with the client when formulating the polygraph policy. As mentioned, you have access to all of these questions before the exam starts.
When the examiner asks you a question during the test, you’ll reply with either yes or no. Don’t give them a lengthy explanation, it confuses the lie detector device, and the examiner will ask you to answer in a yes or no format.
Tip #3 – Pay Attention in the Pre-Exam Briefing
Before the examiner starts the lie detector test, they’ll explain the process to you and ask you if you have any questions. As mentioned, the examiner’s job is to make you feel comfortable taking the test. They don’t have authority over you and can’t force you to remain in the exam room if you want to leave.
If you feel your anxiety building to the state where it might induce a panic attack, you have the right to leave, and they can’t stop you from doing so. You’ll feel nervous during the briefing, but listen to what the examiner tells you.
They review your rights with you and the questions they’ll ask during the session. If you have any queries, ask them, don’t overlook them.
Tip #4 – Let the Examiner Know If You’re Feeling Nervous
It’s common for people to feel nervous on the day of the test. This anxiety will peak when you enter the exam room and the examiner starts hooking you up to the instrumentation and the polygraph. If you’re feeling nervous, tell the examiner.
It’s especially important to reveal you’re anxious state if you suffer from an anxiety disorder. The examiner doesn’t want you to freak out as they start taking the test. The examiner will tell you that it’s common to feel nervous, and they’re expecting you to feel slightly anxious – it’s a normal reaction to the situation.
In fact, not being nervous is a bit of a red flag to the examiner. It might signal that they’re dealing with a pathological liar or someone using a countermeasure drug to adjust their nervous system response.
Tip #5 – Notify the Examiner If You Use Medication
One of the strategies guilty people use to “beat” the polygraph is an anti-anxiety medication, like Xanax, before they step into the exam room. Drugs like Xanax and beta-blockers suppress the nervous system’s response to environmental stimuli.
As a result, guilty people use it to try and suppress the FoF when they take the lie detector test. However, millions of people have genuine anxiety disorders. These individuals also have prescriptions from their doctors for drugs like Xanax.
If you have a legal prescription for anti-anxiety medication, mention it to the examiner before you start the test. It’s a similar process to what we discussed earlier with drug abuse. Tell the examiner about your prescription and show it to them.
The examiner will adjust their line of questioning as mentioned previously. While many think these drugs act as countermeasures, the reality differs from what they expect. The polygraph machine is highly sensitive, and a trained, experienced examiner will pick up that you’re using this medication.
Tip #6 – Don’t Drink Caffeine Before the Exam
Stay away from drinking too much coffee or energy drinks before the exam. The beverages contain caffeine, a nervous system stimulant, with an eight-hour half-life. That means the substance stays in your bloodstream for eight hours before it wears off.
The coffee ramps up your nervous system response, making you feel on edge and anxious – that’s not the best state of mind when you’re undergoing a polygraph exam. Drink water and stay hydrated instead.
Tip #7– Be Professional and Treat the Examiner with Respect
When you meet the examiner, they’ll greet you in a friendly manner and do their best to make you at ease with taking the polygraph exam. They are professionals, and they act as such. As mentioned, the examiner has extensive training and a duty to you and your client.
The examiner abides by a code of ethics, and they won’t violate it during the exam by acting as an authority figure. So, treat the examiner with the same level of respect. Don’t get angry with them – they’re just doing their job.
If you must leave the exam room because you feel anxious, tell them and wait for them to remove the instrumentation from your body. Don’t rip it off and walk out, it’s expensive equipment, and they’ll only end up charging your boss or prospective employer for the cost of replacing it.
In Closing – Follow the Plan, and You’ll Be Fine
After reading this post, you have a strategy for helping you get the best possible outcome from your polygraph exam. Follow the plan, and you’ll be fine.
According to the American Polygraph Association (APA), the polygraph is up to 87% accurate at detecting deception in examinees. Polygraph software developers claim their products are up to 97% accurate. So, why are lie detector results not admissible as evidence in court?
This post looks into the aspect of circumstantial evidence as it relates to the lie detector results. We’ll examine court rulings and case studies to give you the history of how the American Justice System views the relevancy of polygraph results.
Understanding the Federal Rules of Evidence
Let’s start by unpacking the admissibility of polygraph results per the Federal Rules of Evidence. According to the courts, lie detector results are admissible evidence, provided they meet the “Daubert standard.” The Federal Judge makes the decision on whether the lie detector results match up to these criteria since they act as a gatekeeper of admissibility regarding the Federal Rules of Evidence.
The introduction of polygraph software dramatically increased the accuracy of lie detector results. Studies published in peer-reviewed journals show the results of these advances. They argue that they meet the criteria of the Daubert standard, opening the move for renewed review of the inadmissibility rules.
Since 2009, 18 states have adopted the Daubert standard of polygraph results admissibility, with the judicial door swung open for others to follow. Federal and most state courts using the Frye standard have since denied the admissibility of polygraph results as evidence in court, with the exception of New Mexico.
19 States admit results of polygraph exams under stipulation by the prosecution and defense involved in the case. New Mexico permits the use of lie detector results without stipulations but under strict rules or evidence.
Daubert & The Supreme Court
In 1993, 70 years after the District of Columbia court ruled on the Frye standard, the US Supreme Court revisited it. The case of Daubert v. Merrell Dow Pharmaceuticals, Inc. saw the issuance of another milestone decision affecting expert testimony and its admissibility, which includes polygraph exam results.
Under the specific standard of the US Supreme Court in Daubert, the court’s ruling antiquated the Frye “general acceptance” standard with the following.
According to Rule 104(a), the judge must undertake a pre-trial assessment of the scientific viability of the testimony and its underlying methodology or reasoning. The results must be applicable to the facts involved in the case.
Considerations involved in this decision are whether the technique in question has been and can be tested. The method must be subject to a peer review and its publication, its potential or known error rate, and the maintenance and existence of standards of operation. The methodology must also have wide acceptance within the scientific community.
The ruling also states the cross-examination of evidence, presentation of contrary evidence, and instruction on the burden of proof, are appropriate rather than uncompromising “general acceptance” standards.
“General acceptance” is not a required precondition to the admissibility of testimony or polygraph results under the Federal Rules of Evidence. Rather the Rules of Evidence, namely Rule 702, assigns the judge the responsibility of ensuring expert testimony is reliable and relevant to the case. Pertinent evidence based on valid scientific principles satisfies these demands.
Examiner Validation
So, attorneys must ensure the polygraph examiner hired to conduct the lie detector test has formal training in polygraph techniques validated by published peer-reviewed scientific research.
This validation requires a minimum of two independent peer-reviewed studies published in journals. The court prefers the use of field studies over lab studies because lab studies are not transferrable to real-world situations.
The Admissibility of Psychophysiological Veracity Examinations
Psychophysiological Veracity Exams using the lie detector are available for use in civil and criminal cases involving Motions to Suppress Evidence, Plea Bargaining, Settlements, Supporting Evidence, Sentencing, Arbitration, Parole and Probation, and other Civil Actions.
Since the Daubert decision, judges have been more willing to accept polygraph results into evidence without a jury, especially during pre-trial and post-trial hearings.
The defense lawyer intending to introduce polygraph exam results as evidence in court on behalf of their client must understand the supersedence of the Frye standard to the Federal Rules of Evidence set by Daubert v. Merrill Dow Pharmaceuticals. Inc., which is only an invitation for forensic psychophysiology to demonstrate its worthiness of acceptance in court.
Therefore the attorney presenting to the court must introduce a well-prepared and competent polygraph examiner with formal training in certified and validated polygraph techniques. The testimony of a foundational expert must precede the examiner’s expert testimony, and a qualified and experienced quality control reviewer must confirm polygraph results.
Case Citations Involving the Introduction of Polygraph Results into Evidence
US v. Piccinonna 885 F.2d 1529 (11th Cir. 1989). Also note US vs. Henderson (11th Cir. 2005) 409 F.3d 1293, 1303.
US vs. Posado (5th Cir. 1995) WL 368417 (admission at the suppression pre-trial hearing).
US vs. William Galbreth, 908 F. Supp. 877, 64 USLW 2260, 43 Fed. R. Evid. Serv 585, 4 Oct 1995.
US vs. Richard Ridling, 350 F. Supp. 90 (E.D. Mich 1972)
US vs. David Crumby, 895 Fed Supp 1354 (DC AR. 1995).
US vs. Lee, 315 F.3d 206 (3d Cir. 2003). Polygraph exam results are permitted as a condition of supervised release at the discretion of the defendant’s probation officer.
US vs. Locke, 482 F.3d 764 (5th Cir. 2007). Polygraph exams as a condition of probation in a child pornography case.
US vs. Stoterau, 524 F.3d 988, 1003 (9th Cir. 2008). Polygraph examination as a condition of parole doesn’t infringe on the defendant’s Fifth Amendment rights. Defendants retain their 5th Amendment rights during the polygraph exam.
Ohio vs. Sahil Sharma. CR 06-09-3248 (2009). Polygraph results admitted over objections with refusal to overturn the ruling.
People vs. Wilkinson (122 Cal. Rprt.2d 703). The California Appeals court ruled that expert polygraph foundation testimony must be permitted in criminal trials.
State vs. Dorsey, 539 P.2d 204 (New Mexico, 1975).
People vs. Kenney, 3 N.Y.S.2d 348, 167 Misc. 51 (Queens County Ct. 1938).
People vs. Daniels, 422 NYS2d. 832, 102 Misc 2d 540 (1979). Polygraph results admitted over objections.
People vs. Glenn Battle, Justice Lewis Douglass, NYS Supreme Court. Polygraph results admitted over objections.
People vs. Vernon, 391 NYS 2d 959 (1977).
Patterson vs. State, 633 S. W. 2d 549 (Tex.Cr.App. 1982).
Kumbo Tire Company, Ltd, et al. vs. Patrick Carmichael, 526 US 137 (1999). The court added that the Federal judge has the “gatekeeping” role under Rule 702, which extends to expert testimony, including soft science experts. They are subject to pre-trial Daubert issues similar to data-based science.
William Davis vs. The People of the State of New York: County of Erie Office of Children and Family Services Administrative Law Judge Proceeding.
US vs. Edward G. Scheffer, 41 MJ 683 (AF Ct. Crim App 1995) and 423 US 303 (1998) upheld the presidential ban on polygraph exam results in inadmissibility in military courts. However, there is room to challenge this ruling in that it permits States to ban polygraph exam results from evidence by statute due to the uncertain validity of results which is since been rectified by scientific studies published in peer-reviewed journals.
Furthermore, polygraph test results may be admitted in court as character evidence as per US vs. Crumby (d. Ar. 1995) 895 F. Supp. 1354, wherein the defendant’s mental health was avoided (US. vs. Campos, 217 F.3d 707 (9th Cir. 2000).
Jeffrey Bellin 80 Temp. L. Rev. 711, 726-727 (2007)
Polygraph Evidence and the Prohibition of Rule 704
Courts also ruled that expert scientific testimony regarding lie detector results is inadmissible under the Federal Rule of Evidence 704(b) due to deposition encompassing the “ultimate issue.” As outlined below, this objection has a narrow scope, even if it’s valid, and consequently shouldn’t provide a significant obstacle to the future admission of polygraph evidence.
The Federal Rule of Evidence 704 was originally drafted with the intention of abolishing common law doctrines prohibiting testimony on the “ultimate issue.” This prohibition deemed by the rules drafters to be difficult or application, unduly restrictive, and serving to deprive the introduction of useful information.”
In 1984, a mentally ill individual attempted assassination on President Ronal Reagan, and Congress passed the Insanity Defense Reform Act of 1984. This ruling added a subsection to Rule 704 to limit psychiatric testimony on behalf of defendants using the insanity defense.
The subsection of Rule 704 says that no expert witness who testifies with respect to a defendant’s mental state in criminal cases may state their opinion or inference as to the defendant’s mental state constituting a component of the crime they’re charged with or of the defense to it.
Despite contrarian arguments, many circuits interpreted Rule 704(b) as extending beyond the testimony of mental health professionals or psychiatric “to all expert witnesses.” The Ninth Circuit used two cases to subsequently apply this prohibition where polygraph experts were going to testify with an absence of criminal intent in the defendant’s answers during the polygraph exam.
Even if we assume Rule 704(b) applies to all expert testimony, proponents of polygraph expert testimony will have minimal challenges involved in avoiding its prohibition for several reasons.
Most polygraph evidence doesn’t pertain to the “mental health or condition” of the defendant. Consequently, it won’t trigger Rule 704(b). Instead, polygraph evidence establishes the credibility of objective factual statements.
Where a trial dispute involves an issue of intent, such as whether a murder was committed in self-defense or premeditated, polygraph evidence may be introduced without a direct inquiry into the defendant’s mental health or condition.
A defendant can disprove their intent circumstantially, in the same manner as the prosecutor would. Questioning presented from the polygraph exam must concern objective facts. However, these facts are offered to disprove criminal intent in this case.
For instance, if the defense wants to prove the defendant murdered someone in self-defense, there’s no need for expert testimony to inquire about the defendant’s intent directly. Instead, the expert can ask if the victim possessed a weapon, if they threatened to kill the defendant, and which party struck the first blow.
By proving the absence of the defendant’s criminal intent through circumstantial evidence provided by objective facts, expert testimony avoids conflicting with Rule 704(b).
Contrary to the analysis by the Ninth Circuit, a polygraph examiner can testify to the integrity of the defendant’s answer of their intent without violating the ultimate issue prohibition of Rule 704(b). This is because there’s a distinction between the defendant’s expert opinion, truthfully stating they acted with a specific intent (self-defense), and the perhaps prohibited opinion of the expert that the defendant acted with that intent.
Since the Ninth Circuit explained the prohibition in Rule 704(b) in another context, it doesn’t bar testimony supporting a conclusion or inference that the defendant does or doesn’t possess the requisite mental state as long as the expert doesn’t draw the ultimate decision or deduction for the jury and the ultimate conclusion or inference doesn’t necessarily follow on from their testimony.
Even the most advanced polygraph technology cannot enable experts to testify to the defendant’s prior intent. Rather, the most an expert can say is that the polygraph results indicated the defendant was truthful when voicing an innocent intent.
The ultimate issue regarding the defendant’s intent doesn’t necessarily follow from the testimony. Instead, as the prosecution will argue, the exam methodology or results might be flawed. Or the defendant may have deceived the test or deluded themselves. As a result, even if the testimony provided by the expert regarding the polygraph exam results is credited, the jury might conclude the defendant possessed a requisite criminal intent.
So, the excessively narrow importance of Rule 704(b) in the context of the polygraph exam results is, at best, that a polygraph examiner isn’t permitted to directly testify as to the integrity of the defendant’s response to questions like “can you explain your intent?” As discussed previously, even the exclusion of this testimony is legally questionable under the rule.
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.
Are you an employer dealing with a case of theft from your premises? If you suspect your employee stole your inventory, you have the right to institute a polygraph policy to uncover their alleged role in the crime.
In such a case, is it legal to implement a polygraph policy in the workplace? Will it land you in trouble with the US Labor department? These are valid questions creating concerns with employers. The last thing you want is to face hefty financial penalties for misusing polygraph exams in the workplace.
In this post, we’ll unpack the legality of workplace policies and how to implement one in your company to catch the thief.
Polygraphs and the Employee Polygraph Protection Act of 1988
In 1988, President Ronal Reagan signed “The Employee Polygraph Protection Act” (EPPA) into power. In the early days of workplace polygraphy, between its inception in the 1930s to the signing of the Act in the late 1980s, employers would use polygraph exams as part of the pre-employment and on-the-job HR processes involved in the hiring and firing of employees.
Unfortunately, many employers abused the polygraph exam privilege, using it to keep undesirable candidates and employees out of their organization. Candidates receiving the short end of the stick in these lie detector exams would frequently complain to the US government, specifically the Labor Department.
As these complaints piled up, the Labor Department consulted with the government to do something about it, resulting in the EPPA coming to power. The EPPA is legislation drafted to prevent employer misuse and abuse of polygraph exams in the workplace. The Act all but did away with the use of pre-employment lie detector tests on candidates, making it illegal for private sector companies to institute this policy in their organization.
Some industries remained exempt from the Act, such as those involved in security, high-value asset transport, and pharmaceutical manufacturing and distribution. However, all other sectors experienced severe curtailing on how they could implement polygraph policies in the workplace.
Up to the 1990s and the introduction of software systems to polygraph science, the polygraph had a 60% to 70% success rate of detecting deception in candidates and employees. So, it’s fair that the EPPA was put in place to prevent false positives created by the device to keep people out of work.
However, despite computerized systems and software dramatically elevating accuracy rates to 97%, the EPPA remains in place. Employers are not permitted to use them in pre-employment screening; they better have a good reason to screen their employees.
What Happens If an Employer Violates the EPPA?
The US Labor Department enforces the EPPA legislation in the private sector. As a side note, public-sector organizations, like the CIA, NSA, and FBI, can still use polygraph policies in their pre-employment and employee management practices.
However, it’s different in the private sector, and all companies must comply with the EPPA. The US Labor department treats cases of employer misuse of polygraph policies very seriously. Suppose an employee feels the employer acted unfairly against them by using a polygraph. In that case, they have a right to seek legal counsel and file a complaint against the employer with the US Labor Department.
The US Labor Department is obligated to investigate the case, collaborating with the employee’s legal counsel in the process. If the investigation discovers the employer’s misuse of the polygraph policy, they’ll impose financial penalties on the company for each violation (independent exam) they determine to violate the Act.
As a result, the employer faces crippling financial penalties that could severely damage their business, even going as far as to push them into bankruptcy. Some of the EPPA legislation violations include the employer forcing or bullying an employee into taking the exam. The employee has the right to refuse their employer’s request to take the polygraph.
The employer may not reprimand or fire the employee if they fail the polygraph exam, and they can make their life difficult at work by adversely impacting the employee experience. These actions constitute a violation of the EPPA and an investigation by the US Labor Department.
Can You Polygraph Your Employees if You Suspect them of Theft?
Despite the EPPA being a serious piece of legislation protecting employees from wrongful use of lie detector tests in the workplace, the Act does make provisions for the legal use of polygraphs. According to the EPPA, the employer may implement a polygraph exam in the case of severe employee misconduct, such as theft, presenting a significant economic loss to the company.
For instance, if a diamond dealer experiences an inventory theft involving thousands of dollars worth of diamonds, they may polygraph[h the staff if they suspect employee involvement in the crime. The theft must present a significant economic loss that could damage the company’s financial health.
So, the employer can’t polygraph the staff if they suspect someone is stealing office supplies. This instance would not meet the EPPAs definition of s significant economic loss warranting the use of a polygraph policy in the workplace.
How Do Employers Structure a Polygraph Policy?
If the employer decides to polygraph their staff due to theft, they must follow EPPA guidelines in structuring a polygraph policy. Failing to submit to the guidelines constitutes a violation of the Act, and the employee has legal grounds against their employer.
The employer will consult with an experienced attorney in these matters. They’ll also hire an independent polygraph company to assist them with the process. The polygraph company nominates an examiner to work with the client in structuring and executing the polygraph policy.
The examiner works with the attorney and the client to draft the paperwork involved with implementing the polygraph policy. They’ll help the client roll it out, ensuring they remain compliant with the EPPA regulations.
An important factor involved with the EPPA is giving the employee at least 72 hours’ notice of their exam date. They have to meet with the employee and explain their rights, ensuring the employee signs documents stating they consent to the test and understand their legal rights involved with the exam.
The examiner must provide the examinee with the questions they’ll ask them during the polygraph exam and issue copies of all relevant paperwork to the employee.
How Does the Polygraph Exam Work?
On the lie detector test day, the employee arrives at the exam room and meets with the examiner. The examiner acts professionally, greeting the employee. They’ll run through the employees’ rights with them again and the questions asked during the tests.
The examiner doesn’t take sides. They remain a neutral party to the situation and always take an objective perspective. The examiner has no authority over the examinee, and they can choose to end the test at any time.
When the examinee feels comfortable in the room and ready to take the test, the examiner hooks them up to the lie detector. The examiner places a blood pressure cuff on the examinee’s upper right arm, electrodes on their fingertips and palms, and they may ask the examinee to sit on a mat that detects movement.
The test involves five to seven questions, and the examinee answers in a yes-or-no format. Typically, the average polygraph exam can last anywhere from 45 to 90 minutes, depending on the nature of the test. After the lie detector test ends, the examiner escorts the examinee from the room.
The examiner will not issue the test results to the employee after the exam. They might suspect deception, and if that’s the case, they’ll review the test results and recording of the session at their office.
When the examiner is confident of the result, they’ll write a report and send it to the employer around two to three days after completing the test. The examinee has no interaction with the examiner after completing the test, and they receive the results from their employer.
How Does the Polygraph Detect Deception?
The polygraph machine operates by assessing the examinee’s reaction to the questions asked by the examiner. When people lie in stressful situations, such as during the polygraph, it activates the sympathetic nervous system, which launches the “fight-or-flight” response (FoF).
The FoF causes an increase in the examinee’s blood pressure, heart rate, respiration, sweat production, and skin electrical activity. The instruments wired to the examinee measure these physiological changes, sending them to a control box linked to the examiner’s laptop.
The software interprets the signals from the instrumentation, presenting them as charts on the examiner’s laptop. The examiner has specialized training to identify when an examinee’s physiological responses indicate activation of the FoF, resulting in a deceptive answer.
Can a Guilty Employee Beat the Polygraph?
The modern polygraph has an accuracy rate of 97% in detecting examinee deception. However, it’s not an infallible machine. The examinee might be a pathological liar, which makes it very challenging for the polygraph to detect deceptive behavior.
Pathological liars don’t experience the same interaction between the brain’s frontal lobe and its amygdala. As a result, they don’t share the sensations of guilt or shame associated with lying with normal people. Pathological liars frequently believe the lies they tell. Therefore, they don’t activate the FoF when lying to the examiner.
Some guilty people assume they can beat the polygraph exam using “countermeasures” during the lie detector test. These countermeasures involve actions like controlling your breathing, curling the toes, clenching the leg muscles, or biting the tongue.
The issue with the efficacy of countermeasures is that they come from a time before the introduction of polygraph software and computerized lie detector systems. As a result, they no longer work. The software is so sensitive and well-programmed that it can indicate to the examiner when the examinee is deploying these types of countermeasures.
Even the act of using drug-based countermeasures like Xanax and other anti-anxiety drugs during the test is easy for a trained and experienced examiner to spot. If the examinee deploys the use of countermeasures during the exam, it constitutes a sign of deception and an immediate failure.
The polygraph machine and the examiner can also detect the difference between an examinee that feels nervous and one that’s genuinely deceptive, reducing the chances of false positives while improving test accuracy.
What Can the Employer Do If the Employee Fails the Polygraph?
Unfortunately, the employer cannot take action against the employee if they fail the lie detector test. The employee may not discipline the employee or fire them. Doing so would violate the EPPA.
The employer may also not make the employee’s job or workplace intimidating or reduce their work experience in an attempt to get them to leave the company of their free will. However, a failed lie detector test does give the employer a prime suspect in a criminal investigation.
They can consult with the police and law enforcement and may open an investigation into the individual they suspect of the crime.
What Are the Other EPPA Exemptions for Using Polygraphs in the Workplace?
So, employers that suspect an employee’s involvement in a theft from their business may implement a polygraph policy for their staff, provided they remain compliant with the EPPA legislation. Fortunately for employers, the EPPA also allows employers to use a polygraph policy in a range of other scenarios where rogue employees may present threats to the company and its staff.
If the employer suspects a staff member of fraud or embezzlement, they can use a polygraph policy to uncover the culprit behind the scheme. Or if the employer has a staff member accuse another of sexual misconduct in the workplace, and the accused denies it, they can use a polygraph policy to get to the bottom of who is telling the truth.
The employer may also use a polygraph policy if they suspect an employee uses drugs in the workplace or sells illegal or prescription drugs to other staff members. Provided the employer remains within the guidelines of the EPPA, a polygraph exam offers the company the benefit of weeding out the bad actors in their organization.
