Employee Polygraph Protection Act of 1988

In 1988, Congress passed the cto prevent employers from subjecting applicants and employees to lie detector or polygraph tests. Under the Act, the term "lie detector" includes a:

• Polygraph,

• Deceptograph,

• Voice stress analyzer,

• Psychological stress evaluator, or

• Any other similar device (whether mechanical or electrical) that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.

The term "polygraph" is defined under the Act as: (1) a device that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory, and electrodermal patterns as minimum instrumentation standards; and (2) is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.

Under the Act, it is usually illegal for an employer to:

• Require or request that an employee or applicant take any lie detector test;

• Use or inquire about the results of any lie detector test of an employee or applicant; or

• Discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or applicant for refusing to take a lie detector test, on the basis of the results of a test, for filing a complaint under the Act, for testifying in any proceeding under the Act, or for exercising any rights afforded by the Act.

Exemptions

The Act does not apply to federal, state, or local governments. Congress has, however, declared that the Act applies to legislative employees. The Act also excludes from prohibition lie detector tests administered by the federal government to employees of defense contractors who are working on national security intelligence or counterintelligence functions.

The Act also provides a narrow exception allowing private employers to use lie detector tests under the following circumstances:

1. The test is administered in connection with an ongoing theft, embezzlement, espionage, or similar type of investigation;

2. The employee from whom the test is requested had access to the property that is the subject of the investigation;

3. The employer has a reasonable suspicion that the employee was involved in the activity under investigation; and

4. The employer executes a legally-binding, signed statement, provided to the examinee before the test, that:

   • sets forth with particularity the specific activity being investigated and the basis for testing the employee,

   • is retained by the employer for at least three years,

   • contains an identification of the specific loss or injury to the employer,

   • contains a statement indicating that the employee had access to the property that is the subject of the investigation, and

   • sets forth the basis of the employer's suspicion of the employee.

Notice Provision

Employers are required to post notices of the Act's requirements in a conspicuous place.

Penalties under the Act

Employers who violate any provision of the Act may be subject to civil fines up to $10,000. The Wage and Hour Division of the Employment Standards Administration is responsible for enforcing the Act. Employees and applicants whose rights under the Act are violated are authorized to bring actions against the offending employer to recover lost wages, benefits, or equitable relief, such as reinstatement or hiring.