Laws You Should Know, Employee Polygraph Protection Act

03/05/07

Say you run a warehouse business and are tired of hiring employees who end up stealing from the company. You’d love to give all prospective employees a lie-detector test before hiring them to find out whether they’ve stolen from other employers.

Unfortunately, you can’t. The Employee Polygraph Protection Act of 1988 prohibits most private employers from:

(1) Requiring, requesting, suggesting or causing, directly or indirectly, any employee or prospective employee to take or submit to a lie detector test;

(2) Using, accepting, or inquiring about the results of a lie detector test of any employee or prospective employee;

(3) Discharging, disciplining, discriminating against, denying employment or promotion, or threatening any employee or prospective employee to take such action for refusal or failure to take or submit to such test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding, or for exercising any rights afforded by the Act.

Two Industry Exemptions
The law sounds ironclad, but there are two types of private employers exempt from it (subject to restrictions):

Those that manufacture, distribute, or dispense a controlled substance (like a pharmaceutical company);

Those that provide certain security services (like armored cars or security guards).

Ongoing Investigations
It is also permissible to require lie-detector tests when the business has experienced such incidents as theft, industrial sabotage, or embezzlement, and you are conducting an ongoing investigation.

This exemption is also subject to many restrictions. Among them: The employee has to have had access to the property that is the subject of the investigation; you must have a reasonable suspicion that the employee was involved in the incident or activity; and you must explain why you want to do a lie-detector test.

The exemption, moreover, applies only to specific incidents. You can’t randomly test employees just because you’re losing inventory out of the warehouse.

“Because of the restrictions and regulations,” says G.Neil corporate counsel Wendy Smith, “always involve an employment attorney early in any investigation in which a lie-detector test may prove useful. Penalties for violating this act can be harsh and can open you up to civil liability. A good lawyer can keep you in line with the law.”