Background
On June 27, 1988, the Employee Polygraph Protection Act of 1988 (“Act”) was signed into law by President Ronald Reagan. Generally, the Act prohibits employers who are engaged in interstate commerce from using lie detector tests for pre-employment screening and/or during the course of employment. However, certain employers may be exempt from such prohibitions.
Terms: Lie Detector and Polygraph
The terms “lie detector” and “polygraph” are often used interchangeably. However, they do not necessarily mean the same thing under the law. A “lie detector” is defined as a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or similar device. This device can be mechanical or electric, but, regardless, is used to render a diagnostic opinion as to an individual’s honesty or dishonesty. On the other hand, a “polygraph” is an instrument that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory, and electrodermal patterns to render a diagnostic opinion regarding an individual’s honesty or dishonesty.
Therefore, in sum, “lie detectors” are a category that includes different types of tests used to determine honesty or dishonesty, whereas a polygraph is one of several different types of lie detectors.
Employer Prohibitions
Employers who are engaged in interstate commerce are prohibited from engaging in certain conduct. The types of conduct employers should refrain from includes but is not limited to: (i) requiring, requesting, suggesting, and/or causing a current or prospective employee to take and/or submit to any lie detector test; (ii) using, accepting, referring to, or inquiring about the results of any lie detector test of any current and/or prospective employee; and/or (iii) discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against a current and/or prospective employee for refusing to submit to a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding, or for exercising any right(s) afforded by the Act.
Employers Exempt from the Act
Although employers are generally prohibited from using lie detector tests for pre-employment screening and/or during the course of employment, certain employers are nonetheless exempt from such prohibitions. Exempt employers include but are not limited to federal, state, and local governments; and tests administered by the federal government to individuals employed by federal contractors who are engaged in national security intelligence and/or counterintelligence.
Additionally, in the private sector, there are certain exemptions applicable to the use of polygraph tests, but not other types of lie detector tests. A polygraph may be administered in the private sector, subject to certain restrictions, to the following types of individuals: (i) 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 the investigation; (ii) prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials or operations affecting health or safety, national security, or currency and other like instruments; and/or (iii) prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employees who had access to persons or property that are the subject of an ongoing investigation.
If you feel your employments rights under the Employee Polygraph Protection Act of 1988 have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.