Can an Employer Use a Lie Detector Test on an Applicant or Employee?

Employers have used polygraphs or “lie detector” tests in hiring decisions or in the course of employment. Despite often being called a lie detector, a polygraph can’t tell whether someone is lying. The machine measures four to six physiological responses, such as respiration, blood pressure, and heart rate. The theory is that lying causes stress reactions, which a trained examiner analyzes. Employers should know the rules for using polygraphs, or they may face penalties and lawsuits.

General Rule: Employers Can’t Use Lie Detector Tests

The Employee Polygraph Protection Act (EPPA) is a federal law that prohibits employers from using lie detectors for pre-employment screening or using the results against workers. Under the EPPA, small business owners may not:

• Require any employee or applicant to take a lie detector test
• Make a lie detector test a condition of employment or continued employment
• Use the results of a lie detector test to refuse to hire, discharge, discipline, or fail to promote an employee
• Refuse to hire, discharge, discipline, or fail to promote an employee for refusing to take a lie detector test

The EPPA does not apply to state or federal government employees.

Many state and local governments have even stricter laws regarding the use of polygraphs in employment settings than the EPPA. In other states, you must tell the prospective employee in writing that refusing or failing to pass the polygraph will not affect their chances for employment. Understanding both federal and state obligations is a necessity, so consider speaking with a local employment attorney.

When Can Employers Use a Lie Detector Test?

Private employers can use polygraph exams in some cases. A national security exception applies to private employers in the security business. Armored transport and security companies can use polygraph exams for employees guarding high-value infrastructure, commodities, and currency.

When employers have suffered an economic loss due to theft, embezzlement, or similar crimes, the EPPA allows the use of lie detector tests under strict conditions. Employers must:

• Use a certified polygraph examiner
• Have suffered actual economic loss
• Provide the employee with a notice before the test explaining the incident leading to the investigation and why certain employees are being tested

The notice must state, at the minimum:

• A description of the loss or injury to the business
• An explanation of the grounds for the employer’s reasonable suspicion of the employee’s involvement in the incident
• An explanation of the employee’s access to the property or loss under investigation
• An explanation of the nature and characteristics of the polygraph exam itself
• An explanation of the employee’s rights, including their right to terminate the exam, their right to consult legal counsel before the exam, and to file a complaint with the Department of Labor

Employers must provide written notice of the exam date, time, and location. They must give the examiner written notice identifying the employees to be tested. If employers are subject to the EPPA, they must have an EPPA poster visible with other labor law posters and notices.

What Are the Penalties for Violating the EPPA?

Under the Employee Polygraph Protection Act, the U.S. Department of Labor can assess fines of up to $26,262 per violation against non-compliant employers. In addition, applicants or employees may file civil lawsuits against the employer. Courts can order reinstatement or promotion, award back pay, and require the employer to cover legal expenses and attorney fees.

Alternatives to Lie Detector Tests

Using lie detector tests in pre-employment interviews is an inefficient way to evaluate a prospective employee. The American Polygraph Association stresses that polygraphs can help determine truth or falsity about a single, fact-specific incident, but not about tendencies, thoughts, opinions, or attitudes. For instance, a polygraph test could ask someone, “Did you steal money from your boss?” but could not ask, “Would you steal money from your boss?”

Voice stress analyzers have become more popular in police interrogation, and some employers have begun using them as well. However, they suffer the same drawbacks as lie detectors. Since the analyzers test for undetectable changes in pitch and tone, it’s often unclear what they are testing. Until there’s better evidence or reliable case law, employers should steer clear of these devices and apps.

These alternative methods for assessing a job applicant should warrant an employer’s consideration. They provide a better view of an individual’s psyche, especially when paired with other tests. However, some tests may have legal pitfalls:

• Integrity tests: These tests purport to measure an employee’s honesty and trustworthiness. Some studies suggest they tend to misclassify honest employees. Improperly worded questions can run afoul of other federal regulations.
• Personality tests: Based on psychological evaluations, or even the tests themselves, these tests assess individuals’ mental quirks and how they work individually and with groups. Tests like the MMPI have been challenged in court as violating the Americans with Disabilities Act (ADA).
• Emotional intelligence tests: These test how an individual reacts to others and stressful situations. These tests can help evaluate team-building and management potential in prospective employees.

Because pre-employment screening tests can create legal risks under laws like the ADA, the Society for Human Resource Management (SHRM) recommends consulting with an employment law attorney before implementing any such test to ensure it is legally compliant and valid for the position.

Consult an Employment Law Attorney

If you are considering using a polygraph test or other pre-employment testing, it is essential to get guidance from a local employment law attorney. You need to know about federal, state, and local laws before proceeding in this area.