What do I do if my job wants me to take a “lie detector” test?

In several recent cases in Missouri, the question of whether an employer can rightfully use a "lie detector" test (more accurately a polygraph test) on employees has come up several times. As a result, I decided it would be helpful to give a brief explanation of when you might legally have to take such a test, and what governs your rights when you do. 

Be aware, it is NOT a "lie detector," it is a polygraph test. What is a polygraph? A polygraph is a popular test that measures and records body metrics such as blood pressure, pulse, respiration, and skin conductivity while a person is being asked questions. The body's reactions to the questions shows where that person might be the most stressed when answering. The interpretation is that the more reaction given in response to a question is a physiological indicator that the answerer is being deceptive or less than truthful. They are often used as an interrogation technique by police or investigators to coerce people into making statements -- often regardless of the machine's results. 

The Employee Polygraph Protection Act 

According to the US Department of Labor - Wage and Hour Division, the EPPA prohibits most private employers from using polygraph tests, either for pre-employment screening or during the course of employment. It also prevents discharge, discipline, or discrimination against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. Employers may not use or inquire about the results of a polygraph test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act. Violations can result in up to $10,000 in civil penalties against the employer, as well any court actions the employees or job applicants would like to bring themselves. 

Exemptions

Subject to restrictions, the EPPA does allow polygraph testing of certain employees of private firms who are reasonably suspected of "involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer." The EPPA also excludes Federal, State, and local governments, or persons engaged in national security-related activities on behalf of the Federal government. Another common exemption are those, subject to restrictions, who work for security related companies (guards, alarm companies, armored car personnel), and employees of pharmaceutical makers or distributors. 

What that means for you 

In the recent case of Kautz v. Springfield Pool & Spa, LLC, the Western District of Missouri ruled that workers must show that the polygraph results were the reason for termination or adverse employment decisions, not just a motivating factor, in order for it to be successful under the EPPA. This means that if the private employer has a covered reason to suspect fraud, that the examinee must show in court that the test was the sole reason for the negative actions. If other co-workers or witnesses make supporting accusations, or if background information emerges that feeds into the employer's decision, it can make the case more difficult to win. 

Rights if taking a test 

Where polygraphs are permitted, there are lots of strict standards governing how the test is conducted, and how long it can last. The examinee also has various rights including having written notice before testing, the right to discontinue or refuse the test, and the right to have those test results limited to authorized persons only. The person administering the test should also be a bonded professional who fits the EPPA standards for test administrators. If you find yourself in this situation, it is almost always best to contact an attorney to help guide you through the best course of action. 

It is important to note that the law does not preempt any State or local law provisions, or any additional restrictions or rules put in place by a collective bargaining agreement. 

Unless you fall into an excluded category of employment, or your employer reports an official theft or business loss and screens everyone, you should not have to submit to a lie detector test. For any questions on your rights for lie detectors, you can message directly, or reach out to us at Baldwin & Vernon.