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.