Polygraph Law

Has your current or prospective employer asked you to submit to a polygraph test or any other type of lie detector test? Should you consent? We can help shed light on this often unexpected issue that doesn’t receive the attention it deserves.

Say, you are applying for a job – you’ve submitted your resume with cover letter, you’ve filled out an application form, you’ve submitted copies of your academic or work credentials and you provided references from former employers. You may have already taken and passed the requisite testing for the job and you’re seated there, nearing the end of your job interview (which you’ve aced, and the interviewer seems to like you and be impressed with how you answered the questions confidently) but the prospective employer asks you casually: “Do you mind taking a polygraph test?”

Your mouth hangs open, your eyebrows furrow and your mind goes blank. What should you do?  How should you react?

You probably want to make an impression on your prospective employer – that you’re a truthful kind of person, reliable and trustworthy on the job. But in the back of your mind, you ask yourself, “Do I really have to do this?” because you truly feel uncomfortable and vulnerable about taking a polygraph test. You wonder if the results of the polygraph test will be used against you and your job application will be denied because you “failed” on a polygraph test. And yet, if a polygraph test stands between you and your dream job, why should you feel scared about taking a polygraph test if you haven’t done anything wrong? These questions whirl around in your mind.

Well, worry no more:  it is prohibited by law for prospective employers to require job applicants to take a polygraph test as a condition for hiring. So, under the Employee Polygraph Protection Act (EPPA), any prospective employer who requires a job applicant to take a polygraph test, or discriminates against a job applicant for refusing to take a polygraph test, can be penalized. A job applicant who is forced or influenced to take a polygraph test may file a complaint and obtain damages.

If you’ve been required by a prospective employer to take a polygraph test, or if your job application was denied and you weren’t hired because you refused to take a polygraph test, you may want to speak to a Polygraph Attorney. Please call us at (305) 503-5131 or click here to discuss your situation with one of our experienced attorneys.

This general rule, of course, has exceptions. If you are applying for a job at a security firm, or you are applying for a job as a security guard or for a job as an armored car guard or driver, you may be required to take a polygraph test. If you are applying for work at a pharmaceutical company, or at a pharmacy and your work includes dispensing or distributing drugs, you may be required to take a polygraph test. Even in those situations, however, the EPPA requires those type of employers to follow strict guidelines if they choose to give a polygraph test and a failure to follow any of the required guidelines may violate the EPPA. If you are applying for work with the government or in law enforcement, you likely will be required to take a polygraph test. The EPPA applies only to non-government employers.

If you applied for a job that is not subject to the aforementioned exception and your job application was denied as a result of you having refused to take the polygraph test, or having failed such a test, you may file a complaint against your prospective employer and ask for legal and equitable relief such as damages or employment in the company.

Let’s say you have been hired. You’ve been doing your best at your job, but then, all of a sudden, the office starts buzzing with whispered rumors about money or properties of the company which have been stolen or embezzled. Everyone is questioned, everyone is a suspect. Your supervisor or boss then asks all of the employees in your department to take a polygraph test. What should you do?

Unlike a polygraph test as part of a pre-application screening, a polygraph test in these situation may get you in a lot of trouble with the law. You may be charged and prosecuted as the person responsible for the theft or embezzlement. Should you consent to a polygraph test?

You’ve watched a lot of cop shows on TV and you know that “anything you say, can and will be used against you in a court of law.” You wonder to yourself if taking a polygraph test is just that – you providing your bosses with evidence, which may or may not be used against you in court. What are your rights?

First, please note that the Employment Polygraph Protection Act allows employers to request their employees to take polygraph tests, especially when they suffered economic loss due to theft or embezzlement of company property. Second, certain requirements are imposed on employers who want to request their employees to take a polygraph test in aid of investigation of theft or embezzlement of company property. Basically, an employer must be able to show, and give you notice in writing, that (a) it has in fact suffered an economic loss and describe what it was; (b) you had access to the property and describe what that access was; and (c) it has reasonable suspicion that you were involved in the loss and describe, in detail, what that suspicion is.

Additionally, before employers give their employees a polygraph test, they are required to comply with the following, in writing:

  1. They must give NOTICE to the employee of the date, the time, the place of the polygraph test.
  2. They must give NOTICE that the employee has the right to consult with a lawyer at each phase of the test.
  3. They must provide the employee with NOTICE as to the nature and characteristics of the machine or instrument to be used in the examination.
  4. They must inform the employee in a notice of his or her rights.
  5. They must provide a list of prohibited questions and topics.
  6. They must inform the employee that he or she is free to terminate the examination.
  7. They must inform the employee that he or she may file a complaint with the Department of Labor for any violation of his or her employee rights under the EPPA.
  8. The notice must be signed by the employee and by a person authorized by the employer to bind him or her.

There are other requirements in the EPPA that are beyond the scope of this article. You should note, however, that some courts have interpreted the EPPA in a way where employers are not required to provide all the notices that the EPPA requires depending on whether you refused or agreed to take a polygraph test. That is why it is very important that you speak with a polygraph lawyer before you make a decision. It is also very important that you ask for, and keep, any documents that the employer asks you to sign, or gives you, when it requested that you take, or when you actually took, a polygraph test. After the polygraph test is performed, the employer has the obligation to keep copies of the examiner’s report, findings or opinion on the test at their place of business where it may be accessed by the employer, its lawyer or the personnel of the Secretary of Labor in case a complaint is filed by the employee.

You should note that an employer cannot take adverse action against you (like firing you) based only on your refusal to take a polygraph test, or based only on the fact that you failed a polygraph test.

Have you been asked to take a polygraph test, or given a polygraph test, as part of an office investigation into theft or embezzlement? Were any of your rights to notice, rights to representation by a lawyer and your rights to information violated by the employer when you were asked to take, or given, a polygraph test?

You may file a complaint in court for legal and equitable relief such as reinstatement, promotion or payment of lost wages and benefits. You could also file a complaint before the Wage and Hour Division of the Department of Labor. The Secretary of Labor can then take action to stop your employer from violating your rights under the EPPA. The Secretary of Labor can also assess civil monetary penalties of up to $10,000 per violation. It has been our experience that it is preferable to bring an action in court since this way you are likely to obtain relief quicker and you have more control over what happens in your case as it develops. In court you may also be able to obtain damages, such as punitive damages and damages for your emotional distress, that the Department of Labor may not seek on your behalf. If you are being asked to take a polygraph test by your employer or prospective employer, it is extremely important that you speak to a polygraph attorney before you make any decisions. The EPPA is a complex law and your rights under the law may be affected by the decisions you make. You need an experienced polygraph attorney to guide you. Contact us for a free consultation.