It is clear that just like in courts, the use of polygraph tests is prohibited in employment. This calls for the exercise of just treatment of and protection to employees.
No less than the Employee Polygraph Protection Act (EPPA) prohibits most private employers from using polygraph tests, whether the use is before or during the course of employment. In addition, employers are not allowed to require or request applicants and employees to take a polygraph test. The law strictly calls for compliance on the part of the employers.
Circumstances that Allow Employers to Require a Polygraph Test
Employers in general may not require or request a job applicant or employee to take a lie detector test, or remove, discipline, or discriminate against an employee or job applicant for refusing to take a polygraph test. Employers are also legally bound not to request results from the test. This case is applicable to most private employers, but the law exempts some employers who run security firms, pharmaceutical companies, dispensaries to name a few.
For these employers the polygraph tests can be administered under the following circumstances:
- Polygraph tests can be administered to certain job applicants of security service firms and of pharmaceutical manufacturers, distributors, dispensers, and the like.
- Subject to restrictions, the Employee Polygraph Protection Act (EPPA) gives permission to polygraph testing of certain employees of private firms who are reasonably suspected of having involved in a workplace incident such as theft, embezzlement, and other untoward and adjacent acts that resulted in specific economic loss or injury to the employer.
Protecting the Employee
Employee Polygraph Protection Act (EPPA) also states that employees are legally entitled to employment without the having subject oneself to a polygraph test. In those regions that allow the administration of polygraph tests, strict provisions before, after, and during the test have to be observed. Employees are also encouraged to reach out to proper authorities if an employer or potential employer manifests violation on any part of the act. This calls for strict adherence to the provisions of EPPA on polygraph testing and employees need to know this for their protection.
It should also be made clear to the employee that before the polygraph test is administered, the he or she is legally entitled to basic information surrounding the incident that is being investigated. This includes the information on the nature and occurrence of the incident, if there was any loss or injury in the situation, what was taken or missing, why the employee is thought to have been involved, and other significant information related to the investigation of the incident.
The Right to Counsel
Should an investigation commence and this warrant the involvement of the employee to participate in the investigation, it is the legal responsibility of the employer to allow not just a considerable amount of but plenty of time for the employee to avail himself or herself of an independent counsel before being subjected to take the polygraph test. Information such as the written description of how the test will go and an explicit list of the employee’s rights will have to be provided to the employee as well.