Do you think about giving applicants or employees a lie detector test. Be aware of the limitations on the use of lie detector tests before you make that decision. It is important to know the laws regarding polygraphs, when and how you can require people to take them, as well as the rules about what you can do with the results.
These tests are administered using a polygraph machine, which analyzes the responses of a set questions. This test is commonly known as a “lie detector”, and it is also used in this article. Other devices that can be used to give a diagnosis about an individual’s honesty and dishonesty are also included in the term.
EPPA Regulations for Polygraph Tests
Only pre-employment or employment purposes can your business require or request that someone take the polygraph test. An applicant or employee who refuses to take the test, or exercise other rights under the EPPA, cannot be fired or discriminated against.
This test can be required if an employee is “reasonably suspect” of being involved in a workplace incident such as theft or embezzlement. It also applies if there was a financial loss for your company. A licensed and bonded polygraph examiner must be used (or someone with professional liability coverage). The law sets strict standards and limits disclosures of test results.
State laws on lie detector tests
Some states may have more restrictions than the federal regulations for lie detector tests. You must follow the stricter law (federal and state). For example, there are some restrictions in state laws that you must comply with:
Iowa law prohibits employers from requesting or requiring applicants or employees to take a polygraph test. Employers are prohibited from trying to threaten or administer an exam to applicants or employees.
The state of Illinois has restrictions on certain questions regarding the lie detector test, except when they are directly related with employment. These questions include questions about religious, political or labor-related beliefs, affiliations, activities or activities, belief or opinions regarding racial issues, as well as sexual orientation or activity.
Giving a lie detector test
The EPPA regulates how an applicant or employee can take a lie detector test. It also sets out requirements for giving notice, and the administration of the polygraph.
Notification to an employee or applicant
You must send a notice to someone in order to give them a lie detector test. It must include the date, time and location of the test.
Notices must contain:
- An affirmation that the examinee is entitled to consult with legal counsel before any phase of the test.
- A description of the instrument and the exam process in writing;
- “Extensive” written notice to the examinee about his rights. This includes a list of topics and questions that cannot be asked. The examinee has the right to terminate the examination.
- Information about the examinee’s rights to file a complaint at the Department of Labor if they believe there has been an EPPA violation.
The Time of the Test
Before you allow an applicant or employee to take the test at the test site, you must provide a statement explaining the exact reason (the incident) and why the test is being required. The following must be included in the statement:
- Information about the exact economic loss or injury that occurred to your company
- This is how this employee was able to gain access to the property
- Information about the reason you suspect that the employee was involved
- A responsible party from your company must sign the statement, not just the polygraph examiner. (Someone authorized to act for the company).
After passing the Lie Detector Test
Keep records for at least three years starting from the date of the lie detector test or the date it was requested. You cannot also disclose information from a polygraph exam.
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This poster must be displayed at work, as well as other required posters. You can post the required posters to your company website for applicants and employees who work online.
If you have any questions regarding the practicalities or limits of administering a polygraph test your employees, it is worth seeking legal advice.