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.