When can an employer ask an employee or a candidate for employment to take a lie detector test? The Employee Polygraph Protection Act (EPPA) from 1988 is a federal law that prohibits most private employers from giving lie detector tests to employees, whether the use is for pre-employment screening or during the course of employment. Employers generally cannot even request that an employee take a lie detector test, let alone require it.
The law, however, does not apply to people working in federal, state, and local government agencies. There are other exceptions as well. Read below for more information about EPPA, including exceptions to the law, and what your rights are as an employee if you are asked to take a lie detector test.
When Employers Can Require a Lie Detector Test
Employers generally may not require or request a job applicant or employee to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a lie detector test. Employers are also legally unable to request results from a lie detector test. This is the case for most private employers.
However, there are exceptions to EPPA. For example, security firms (such as alarm companies) and pharmaceutical manufacturers, distributors, and dispensaries do not fall under this law. They are allowed to use lie detector tests on employees, although there are restrictions surrounding how they can use the tests.
As mentioned above, federal, state, and local government agencies also do not have to follow the rules of EPPA. However, again, they face regulations if they give lie detector tests to employees.
One other exception is that employers of certain private firms can give polygraph tests to certain employees if they are reasonably suspected of involvement in a workplace incident, such as theft or embezzlement, as long as it resulted in specific economic loss or injury to the employer. However, this use of a polygraph test is also under certain restrictions. For example, the employer has to fully explain to the employee in writing the activity they are investigating.
Rights of the Employee
EPPA states that employees are legally entitled to employment at most companies without the expectation of having to take a lie detector test. For those companies that are allowed to do tests, there are strict provisions before, during, and after the test. For example, employees have to be told ahead of time about the test, and certain information has to be recorded. The Polygraph Examiner also has to be licensed if this is required by the state in which the test takes place.
If the employee lives in a state or local area that has even stricter rules related to lie detectors, his or her employee has to follow those stricter rules. Employees are also able to reach out if an employer or potential employer is violating any part of the act. They can bring civil action against the employer in federal or state court. However, they have to do this within three years of the violation.
Legally Required Notice
Before the lie detector test commences, the employee is legally entitled to basic information surrounding the reason for the test. If it is because of a supposed offense, the employee must be told about the incident being investigated. This includes what happened, if there was any loss or injury in the situation, what was taken or missing, why the employee is thought to have been involved, etc.
The employer is also required to give the employee a written description of how the test will go, and an explicit list of the employee’s rights. He or she also must provide plenty of time for the employee to seek independent counsel before the test.
Where to Get More Information
If you need more information on lie detector tests for employment, you can read more about EPPA on the United States Department of Labor website. You can also check out this fact sheet on EPPA.
If you want specific information about lie detector regulations in your state, look up your local Wage and Hour Division (WHD) office.
Other Types of Pre-Employment Tests
Most other pre-employment tests are not restricted in the way that lie detector tests are. These tests range from physical ability tests to drug tests to personality tests. Most of these are legal and not heavily restricted. They are only illegal if the company uses the test to discriminate against applicants on the basis of age, race, color, sex, national origin, religion, or disability. Read here for more information on pre-employment tests other than lie detectors.