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Employment Law: Polygraph Tests

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The Employee Polygraph Protection Act, 29 U.S.C.A. section 2001, et seq., governs the company's use of a polygraph test to question its employees. Polygraphs are severely restricted by this act. Section 2006 of the Act allows an employer to request an employee to take the test if:

(1) the test is administered in connection with an ongoing investigation involving economic loss or injury to employer's business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage;

(2) the employee had access to the property that is subject of the investigation;

(3) the employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and

(4) the employer executes a statement, provided to the examinee before the test, that:

(A) sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employee;

(B) is signed by a person (other than a polygraph examiner) authorized to legally bind the employer;

(C) is retained by the employer for at least three years; and

(D) contains at a minimum:

(i) an identification of the specific economic loss or injury to the business of the employer;

(ii) a statement indicating that the employee had access to the property that is the subject of the investigation; and

(iii) a statement describing the basis of the employer's reasonable suspicion that the employee was involved in the incident or activity under investigation.¹

Section 2007 of the Act states that an employer may not discharge an employee based on the outcome of the polygraph alone. There must be additional supporting evidence and if an employee refuses to submit they cannot be fired simply because they refused to submit. The employer must also meet the following requirements in order to be able to ask an employee to submit to the test:

Throughout all phases of the test:

(A) the examinee shall be permitted to terminate the test at any time;

(B) the examinee is not asked any questions in a manner designed to degrade, or needlessly intrude on, such examinee;

(C) the examinee is not asked any question concerning:

(i) religious beliefs or affiliations;

(ii) beliefs or opinions regarding racial matters;

(iii) political beliefs or affiliations;

(iv) any matter relating to sexual behavior; and

(v) beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations; and

(D) the examiner does not conduct the test if there is sufficient written evidence by a physician that the examinee is suffering from a medical or psychological condition or undergoing treatment that might cause abnormal responses during the actual testing phase.²

This section of the statute also sets out the requirements for the pretesting and actual testing stage, the maximum, number and minimum duration of tests, and qualifications and requirements of the examiners.

The Act also prohibits the employer from releasing the results except under specific exemptions.

In light of this statute, if the above conditions are met, an employer can ask an employee to submit to a polygraph test and can fire the employee as long as there is additional evidence to support the discharge.

¹ See 29 U.S.C.A. section 2006(d), 2002. Back
² See 29 U.S.C.A. section 2007(b)(1), 2002. Back

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