Are Polygraph Tests Legal for Employment Under U.S. Law?

Understanding the legality of polygraph tests in employment can be complex, as it varies significantly based on the context and jurisdiction. In the United States, employment-related polygraph testing is largely governed by the Employee Polygraph Protection Act of 1988 (EPPA), which sets stringent rules on its use. This article explores the legal landscape of polygraph tests in employment, providing clarity on their legality and exceptions.

The Employee Polygraph Protection Act (EPPA)

The Employee Polygraph Protection Act was enacted in 1988 to regulate the use of polygraph (lie detector) tests in employment settings. The primary goal of EPPA is to protect employee privacy rights and prevent potential misuse of this investigative tool.

EPPA applies to most private employers, prohibiting them from requiring employees to take polygraph tests except under specific circumstances. This federal law presupposes that employees should be able to seek employment and maintain their jobs without the expectation of having to submit to a lie detector test.

Exceptions to EPPA

Despite the broad prohibition under EPPA, there are notable exceptions that allow for the use of polygraph tests in certain employment scenarios. These exceptions include:

Federal, State, and Local Government Agencies

Government agencies are exempt from EPPA. This means that federal, state, and local government employers may require employees and applicants to undergo polygraph tests as part of the hiring or ongoing employment process. This is especially applicable for positions that require security clearances, as outlined in the subsequent section.

Positions Requiring Security Clearances

One of the most significant exceptions to EPPA is for positions that necessitate a security clearance. Federal, state, and local law enforcement agencies often require applicants and current employees to submit to polygraph tests. This is because the position involves handling sensitive information or participating in activities that demand high levels of trust and reliability.

For example: If an employee works in a position that requires a national security clearance, they are likely required to pass a polygraph test as part of the clearance process. Refusal to take the test may result in the suspension of the clearance and, consequently, the job.

Even if an employee works in a position that does not require a full security clearance but involves access to restricted information, a polygraph test may still be required. This applies to various positions, such as in the military, intelligence agencies, and certain corporate roles that handle sensitive data.

Employer Rights and Responsibilities

Employers must be aware of the legalities and implications of polygraph testing. They have the right to require the test in certain circumstances, but they also have responsibilities:

Observe Guidelines

Employers must ensure that any polygraph testing aligns with Guidelines set by relevant laws and judicial rulings. This includes:

Compliance with EPPA: For positions not covered by the exception, ensure that the testing is justified and follows EPPA guidelines. Accuracy and Reliability: Polygraph tests must be conducted by qualified professionals and must be accurate and reliable. Confidentiality: Test results must be kept confidential and used solely for the intended purpose.

Legal Reasoning

EPPA requires that the employer must have a legal justification for requiring a polygraph test. This often involves demonstrating that the test is necessary to protect the interests of the employer's business or to ensure the safety and security of the organization.

Conclusion

The legality of polygraph tests in employment settings is a crucial aspect of employment law, especially in the United States. Understanding the Employee Polygraph Protection Act and its exceptions is vital for both employees and employers. While most private employers are prohibited from requiring polygraph tests, certain positions and sectors, such as those requiring security clearances, are exempt. Employers must ensure compliance with legal guidelines to avoid potential legal and ethical issues.