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.
