Lie Detector Tests: The Employee Polygraph Protection Act of 1988

Since their creation in 1921, people have used polygraphs in many situations. While they can help determine whether someone is being truthful, there are limits to how polygraph tests can be used in a private workplace. The U.S. Congress passed the Employee Polygraph Protection Act of 1988 (EPPA) to protect employees from unnecessary lie detector tests.

Who Must Comply

The EPPA covers most private employers. The federal law does not apply to federal, state, or local government workers.

Civil service rules protect government employees from lie detector tests, although there are exceptions. Federal contractor employees engaged in national security intelligence or counterintelligence are exempt.

Basic Requirements

Employees have a right to employment without having to take lie detector tests unless an exemption applies. If you work for a private sector employer, your employer may not require that you, any other current employee, or a job applicant take a lie detector test.

Private employers can't use lie detector tests:

• For pre-employment screening 
• During the course of employment

Employers can't retaliate against an employee or prospective employees for refusing to take a lie detector test. This prohibition means that employers can't fire you or take adverse employment action against you for not taking the test. If you've already taken a polygraph test, your employer can't use or ask about the results of a lie detector test.

Employers who are covered by the EPPA must post a notice in a conspicuous place that explains the law. The poster is available online.

The Wage and Hour Division of the U.S. Department of Labor enforces the law.

Legitimate Administration of Tests

In certain circumstances, authorities allow polygraph tests. For example, if private firm employees are reasonably suspected of involvement in a workplace incident like theft or embezzlement that caused economic loss to the employer, a polygraph test might be permitted.

Certain industries can administer lie detector tests to job applicants. They are:

• Security service firms (alarm, armored car, and guard)
• Pharmaceutical manufacturers, distributors, and dispensers

Examiners must be licensed if required by the state and bonded or have professional liability coverage.

Employee Rights

When administering polygraph examinations, examiners must follow strict standards during the pretest, testing, and post-testing phases.

Before you take a lie detector test as part of an investigation of an employment-related crime, the investigators must give you a written notice that designates you as a suspect. The notice must:

• Be provided at least 48 hours before the test
• Describe the particular incident or activity under investigation
• Explain the basis for the employer's suspicion

Before administering a lie detector test, your employer must read a statement to you and ask you to sign it. The statement must explain:

• Your right to refuse to take the test
• That taking the test is not a condition of employment
• The list of topics that you can't be asked, such as religious beliefs, sexual preference, etc.
• How the test results can be used

While the test is being conducted, you have the right to stop it at any time.

The law limits the disclosure of information obtained during a polygraph test. The results can only be disclosed to:

• A mediator or arbitrator if there is a court order
• You (the employee)
• A court or government agency
• The employer who ordered the test

Penalties

The U.S. Department of Labor can file lawsuits for EPPA violations. The federal agency can also assess civil penalties against violators.

Employees or job applicants may also take violators to court. The deadline to file the legal action is within three years of the violation.

State Laws

The EPPA doesn't override stricter state laws, local laws, or collective bargaining agreements when it comes to lie detector tests.

You Don't Have To Solve This on Your Own – Get a Lawyer's Help

If you feel like your rights regarding the Employee Polygraph Protection Act of 1988 are being violated, consider meeting with a lawyer who can help you understand your options. Visit our attorney directory to find an employment lawyer near you who can help.