Time & Attendance
Commentary & Opinion
By Jon Hyman
Sep. 11, 2018
Lie detector tests, have been all over the news lately. Reports suggest that Donald Trump wants to administer these examinations to the entire White House staff to identify the author of the anonymous New York Times op-ed.
There are no laws prohibiting the White House from using polygraph tests in this manner. The federal law that regulates their use in the workplace — the Employee Polygraph Protection Act of 1988 — does not apply to the government.
For private-sector employers, however, the EPPA imposes strict prohibitions on the use of any device to render a diagnostic opinion as to the honesty or dishonesty of an individual.
It prohibits employers from:
Despite these strict prohibitions, there are limited exceptions when an employer can administer polygraph tests (but not other forms of lie detector tests).
One exception covers prospective employees of armored car and other similar security companies. Another covers prospective employees of companies that manufacture controlled substances.
Of more general application to most employers, the third exception covers employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation. Thus, an employer who reasonably believes that an employee has stolen is able to administer a polygraph test to confirm the employee’s culpability.
Even if this exception applies, employers cannot use polygraph tests carte blanche. There are certain key limits on their administration:
Employers that violate the EPPA are subject to a civil money penalty of $20,521 per violation, in addition to legal and equitable relief such as lost wages and reinstatement, and, in the case of a private civil lawsuit, reasonable costs and attorneys’ fees.
Polygraph tests provide employers a powerful tool to confirm and confront employee certain limited employee issues. Employers must carefully follow the EPPA’s requirements so that a slam-dunk termination does not turn into a sure-fire lawsuit for the employee.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email firstname.lastname@example.org. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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