Previously published in the Manchester Union Leader, May 2011
This question was answered by Neil Nicholson of the McLane Law Firm
Q: Can I ask a potential employee to take a lie detector test to evaluate the accuracy of his or her application?
A: With the exception of government employers and a very narrow list of exceptions for private employers, lie detector tests are unavailable for pre-employment vetting.
A twenty-two year old federal law known as The Employee Polygraph Protection Act ("EPPA") created employee privacy rights that generally prohibit the use of lie detector tests by employers. In those limited circumstances where lie detectors are allowed, strict standards apply. Employees may file suit for violations of the law, and the US Department of Labor hears complaints of alleged violations.
The prohibition applies to most private employers and does not apply to government employers. For the applicable private employers, a lie detector test cannot be used for pre employment screening, during the course of employment, and typically cannot be used as a means for termination or discipline. The exempted private employers that can use lie detector tests for pre-employment purposes include certain security service firms (like an armored truck carrier) and manufacturers, distributors, and dispensers of pharmaceuticals.
Private employers may, however, ask an employee to take a polygraph exam if that employee is reasonably suspected of involvement in a workplace incident that resulted in specific economic loss or injury to the employer (such as a theft or embezzlement incident), the employee had access to the property at issue, and the polygraph exam is administered as part of an ongoing investigation. This is referred to as the economic loss or injury exemption. In these limited situations, strict standards control the conduct of the test, including the pretest, testing, and post testing phases.
The US Department of Labor can bring court action to restrain violators and assess civil money penalties up to $10,000 per violation of EPPA. Appropriate legal and equitable relief for the employee could include employment, reinstatement, promotion, and payment of lost wages and benefits.
Finally, note that the law does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.