Wednesday, February 11, 2009

A primer on employee polygraph testing

As I’ve previously reported, as the recession deepens, incidents of employee theft are on the rise. It should go without saying that just about any employee who steals should be fired. How can companies confirm that the theft actually occurred to support the termination? One available tool is a polygraph test. Employers who use polygraphs, however, must tread carefully to avoid running afoul of the specific requirements of the federal law that regulates their use in the workplace, the Employee Polygraph Protection Act of 1988.

The EPPA applies to the use of any device used to render a diagnostic opinion as to the honesty or dishonesty of an individual, such as polygraphs, deceptographs, voice stress analyzers, or psychological stress evaluators. It applies to private employers, but not federal, state, or local governments.

It prohibits employers from:

  • Requiring, requesting, suggesting, or causing an employee or prospective employee to take or submit to any lie detector test.

  • Using, accepting, referring to, or inquiring about the results of any lie detector test of an employee or prospective employee.

  • Discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against an employee or prospective employee for refusing to take a 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 EPPA.

Despite these strict prohibitions, there are limited exceptions when an employer can administer a polygraph test, but not other forms of lie detector tests. One exception covers prospective employees of armored car and other similar security companies. Another covers prospective employees of companies that manufacture controlled substances.

Of more general application to most employers, the third exception covers employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation. Thus, the employer who reasonably believes that an employee has stolen is able to administer a polygraph to confirm the employee’s culpability.

Even if this exception applies, employers cannot use polygraphs carte blanche. There are certain key limits on their administration:

  • The employee must be provided a written notice explaining the employee’s rights and the limitations imposed, such as prohibited areas of questioning and restriction on the use of test results.

  • Prior to the polygraph test, the employee also must be provided a notice explaining the specific incident or activity being investigated and the basis for the employer’s reasonable suspicion of the employee’s involvement.

  • The employee can refuse to take a test, terminate a test at any time, or decline to take a test because of a medical condition.

  • The results of a test alone cannot be disclosed to anyone other than the employer or employee without their consent.

  • The polygraph examiner must be licensed, and bonded or insured. Also, the examination is subject to strict conduct standards.

Polygraph examinations provide employers a powerful tool to confirm and confront employee theft. Employers must carefully follow the EPPA’s requirements so that a slam dunk termination does not turn into a sure-fire lawsuit for the employee.