last update 1-01-2003

The Polygraph (Lie Detector) in Employment

Federal law (29 USC 2001-2009) prohibits employers from requiring or even requesting that any employee or job applicant take a lie detector test, and from discharging, disciplining, or discriminating against an employee or prospective employee for refusing to take a test or for exercising other rights under the law. The law also protects those who file complaints, give testimony or exercise any right under the law from any retaliation by the employer. Threats by the employer are also unlawful.

The employee or prospective employee can bring an action for damages in either state or federal court to include employment, reinstatement, promotion and the payment of lost wages. In addition, the plaintiff can sue for reasonable court costs and attorney fees. The suit must be filed within 3 years of the date of the alleged violation.

Now that we have stated the general rule, let's look at some of the exceptions and situations in which a polygraph can be used. The law does not apply to the Federal government, the state government or any political subdivision in a state. A test may be given to an employee who works for a contractor under contract with the FBI, certain private security employers may require prospective employees to submit to a test and some drug companies may use the test.

A private employer may use a lie detector test only in connection with an ongoing investigation of financial loss or injury to the employer's business, such as theft, embezzlement, misappropriations, etc. However, a loss from an accident on the job would not be a basis for requiring the test.

In order for the private employer to claim the right to make the test, he must first show that the employee had access to the subject property and a "reasonable suspicion" that the employee is involved in the subject activity. Next, the employer must make a written statement (1) identifying the loss, (2) stating that the employee had access to the subject property, (3) a statement describing the employer's reasonable suspicions that the employee was involved, (4) the employer must sign the statement and (5) the statement must be provided to the employee prior to his taking the lie detector test. The employer is required to retain that statement for 3 years. The employee is not required to take the test but he could legally be terminated if he refuses--but only after the rules about the above statement have been set forth.

The employee has rights throughout the testing phase. Initially, he has a right to be advised that he can consult with an attorney and that he can elect to stop the testing process at any phase. He cannot be asked questions that are degrading, or questions concerning the employees beliefs on religion, politics, racial or sexual matters.

The employee must also be provided with a written explanation of what a polygraph test is and the nature of the instruments involved. If there are any two-way mirrors, cameras or any other recording, monitoring, or observation devices to be used, that fact must be disclosed in writing.

In a private civil action, the employee can recover job reinstatement, payment of lost wages and benefits and other damages as may be equitable. The action must be filed within 3 years of the alleged violation and can be filed in Federal or State Courts.


========================  WARNING  =======================
                      AND DISCLAIMER
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed.  Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a 
attorney to discuss the specific facts of your case
and the law of your state.
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last update 1-01-2003

The Polygraph (Lie Detector) in Employment

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