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Employment Laws Concerning Lie Detector and Polygraph Tests in the Workplace

Few employers currently use lie detector tests in the course of hiring, retaining, or dismissing employees due to current legislation limiting their ability to use such tests. However, it is important for both employers and employees to know their rights regarding the use of lie detecting or polygraph examinations. Having knowledge of the pertinent laws and regulations can prevent an employer from exposing itself to unnecessary liability, and can keep an employee from being illegally punished for refusing such a test.

Do you have to take a lie detector test as a condition of employment?

Both federal and state laws may affect an employee’s rights regarding the use of lie detector tests in the course of employment. The Employee Polygraph Protection Act (EPPA), a federal law passed in 1988, heavily restricts the use of lie detectors in connection with employment. As a federal law, EPPA controls over all less-restrictive state laws regarding polygraph use.

What does EPPA cover?

The Employee Polygraph Protection Act covers all private employers operating in interstate commerce. Legal precedent regarding what is considered “operating in interstate commerce” shows that such a standard is broadly interpreted to cover nearly any employer using internet, telephone, or mail for communications out-of-state. Therefore, for the majority of private employers, EPPA outlaws administering, use, or consideration of a polygraph test in an employment decision. Like many other federal employment laws, EPPA also prohibits an employer from participating in reprisal against an employee who refuses to take a polygraph examination or attempts to utilize any of her rights under EPPA.

EPPA does contain several exemptions for specific types of employers. All federal, state or local government agencies are exempted, and can use polygraph examinations as a basis for an employment decision. Private security jobs, including operators of armored cars or security at public utilities and power generation facilities, are excepted. EPPA also does not cover professionals who handle or manufacture controlled substances/prescription drugs or certain jobs related to national security.

Finally, EPPA still allows an employer of any type to use a polygraph or lie detector test to investigate someone reasonably suspected of a specific theft or crime at the workplace. However, the employee must be given notice at least 48 hours prior to the examination that she is a suspect in an employment-related crime. EPPA lays out specific substantive and procedural requirements for administering such a test, such as time spans for giving the exam, pre-exam statements of rights, and disallowed subject matter. Failure to follow these guidelines or any restrictions under EPPA can result in civil penalties up to $10,000.

If you believe you were passed up for promotion, fired, or discriminated against for invoking your right not to take a polygraph examination, you may have recourse under federal law.

State Anti-Polygraph Laws

While EPPA severely limits the use of polygraph examinations in the workplace, certain states have passed laws that go even further. As a reminder, federal legislation sets the minimum rights guaranteed to an employee, but state legislation is not preempted if it chooses to go further and give additional protections to employees.

District of Columbia D.C. Code Ann. §§ 32-901 to 32-903

  • Prohibitions: Employer may not administer, have administered, use, or accept the results of any polygraph examination.

MarylandMd. Code Ann. [Lab. & Empl.] § 3-702

  • Prohibitions: Employer may not require or demand that employee or applicant take a lie detector test.

VirginiaVa. Code Ann. § 40.1-51.4:3

  • Prohibitions: Employer prohibited from asking questions about sexual activities in a polygraph test, unless the sexual activity resulted in a conviction for violation of state law.

  • Record-keeping: Any written record of examination results shall be destroyed or maintained on a confidential basis, open to inspection only upon agreement of the employee tested.

Notice to Employers

Under federal law, every employer subject to the EPPA is required to post on premises, in a conspicuous location, a notice explaining the Act. A poster illustrating employee rights regarding polygraph examinations can be found on the Department of Labor’s website.

Have a question about Maryland, Virginia or DC employment law? Contact P.K. Hammar Legal, P.C. at (301) 657-7590.

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