Polygraph Testing

April 13, 2006

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Generally, you cannot use polygraph testing to screen prospective employees and you cannot use the polygraph, except under certain, narrow circumstances, to test current employees.

When can you test? You may use the polygraph to test current employees under the following circumstances:

if there are national defense or security reasons
if employees have direct access to controlled substances in the course of employment
if employees are security guards
if there is an investigation of theft or other similar situations and there have been losses (but only under specific guidelines)

What are the limitations of testing? The specific guidelines (from the federal Employee Polygraph Protection Act) under which you can test employees within the scope of an investigation require that:

There must be an ongoing investigation involving actual economic loss.
The employee that you wish to test must have had access to the items that created the loss.
There must be reasonable suspicion.
You must provide the employee with a statement concerning the reasons why the test is to be conducted.

You must provide a statement that contains the above-listed information to the employee that you want to test. The statement, which must fully disclose the loss, the employee access, and the basis of suspicion, must also:

be given to the employee at least 48 hours before the test
be written so that the employee can understand it
be signed by you or your representative

In no instance can polygraphs be used for random testing or for investigations of unspecified incidents.

What are the employee's rights? The employee's rights include the following:

The employee may terminate the test at any time.
The employee cannot be asked any intrusive or degrading questions.
The employee cannot be asked questions concerning religious beliefs, racial opinions, political beliefs, sexual preferences, or beliefs concerning labor organizations.
The employee cannot be tested if a physician has, in writing, advised against such a test on mental, physical, or other medical grounds.

In addition to the above, there are more guidelines on notices that must be posted regarding who may conduct the tests, how the tests are to be conducted, and how records should be kept and disclosed. As with other consultants, select your polygraph consultant with care and ensure that the individual who will do work for your firm meets all necessary qualifications.