If you suspect that an employee has committed an illegal act, don't make plans to conduct a lie detector test unless there are special circumstances.
The law in this area, and most prominently the Employee Polygraph Protection Act (EPPA), makes it generally illegal to require or even request or suggest that an employee or a job applicant take a lie detector test. But there are exceptions. The law does not cover federal, state and local governments and you can require some individuals to take a polygraph test, including:
However, even in those situations, you must follow strict standards. Before you hook someone up to a polygraph machine, take these five precautions:
Be sure to retain records related to the test for at least three years. This includes the notice to the employee, the employee's consent form and the test results.
In addition, document any adverse action taken and any interviews concerning the incident and its consequences. Also, bear in mind, the law strictly limits the disclosure of information obtained during a polygraph test. Check with your attorney.
An employer who violates the law can be liable for as much as $10,000 for each violation and may be required to hire, reinstate or promote an employee as well as pay lost wages and benefits.
Under the Employee Polygraph Protection Act (EPPA), one of the exceptions to the ban on lie detector tests involves continuing investigations of theft, embezzlement, misappropriation of funds and industrial espionage or sabotage.
You must have a reasonable suspicion that the employee is involved in one of those crimes.
In one case, a court emphasized a key distinction when an employer offered lie detector testing. (Gary Lee Watson v. Drummond Co. Inc., No. 04-15729, 11th Circ., 1/20/06).
The facts: Drummond Co., a coal mining company in Alabama, suspected that a group of employees were involved in theft and drug dealing and fired them.
The coal miners' union challenged the firings and suggested that the company reinstate the individuals who passed a lie detector test. The company agreed but the individuals refused. They then sued Drummond, claiming that it was violating the EPPA by using the tests for reinstatement.
The ruling: The Eleventh Circuit Court disagreed, noting that:
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