Lie Detector Tests: Do Employees have to Submit?

Usually, when one thinks of labor laws, things like minimum wage, worker’s compensation and family medical leave come to mind. But that doesn’t mean there aren’t other important provisions that are covered on the required federal and state labor law posters in the workplace. On all federal labor law posters (or combo federal/state posters), there must be a provision regarding the Employee Polygraph Protection Act (EPPA) of 1988. This act makes it illegal for employers to use lie-detector tests to pre-screen for employment, or while during the term of employment.

The EPPA does not apply to local, state or federal government positions, which a lie detector test may be administered and used as criteria for employment. It also has allowances for employers in certain sectors to administer polygraph or lie detector tests to employees of security firms or those that deal with pharmaceuticals. The Act also permits polygraph testing of employees in the instance that they are suspected with reasonable doubt of theft or embezzlement, where their actions would have financially impacted their employer.

If a polygraph test is allowed to be administered by a polygraph examiner, the government has set forth certain sanctions that must be followed, including strict policies before, during and after the lie detector test. The employer must provide written notice to the employer, including the time and place of the investigation, the description of why the test is being administered and what property is under investigation, notice of employee’s right to counsel and copies of all records that have been furnished to the employer by the polygraph examiner. In addition, the employer must provide a statement before the test (in a language the employee can understand) the reason for the investigation. After the test, the employer must retain the records (including questions, charts, graphs, reports and opinions) of the duration of the test, for no less than three years after the test, and must be available within 72 hours to the Secretary of Labor.

Every employer must conspicuously post federal labor law posters with information on the Employee Polygraph Protection Act. (There are no size requirements for this specific poster, though there are size and font requirements for other labor law posters.)

Most employees in the private sector cannot and should not be asked to take a polygraph test. And if they refused, they cannot legally be discriminated against because of it. Employers who violate the EPPA can be subject to fines up to $10,000.