Don’t Tell Me No Lies: Using Polygraphs in the Workplace

Both federal and Wisconsin law generally prohibit employers from requesting or requiring that employees and job applicants submit to lie detector tests. you cannot refuse to hire an applicant or take an adverse employment action against a current employee based solely on her refusal to take a lie detector test or on the test results themselves. Additionally, you cannot use results from previous lie detector tests as a basis for an adverse job action. Even when honesty testing is permitted, federal and Wisconsin law impose substantial procedural requirements that can be a minefield for the unwary employer.

Federal EPPA

It isn’t unusual for an employer to want to use a lie detector test for a number of reasons in the employment context. A polygraph may act as a background check, allow you to determine if information provided by an applicant is consistent with written information you’ve obtained, or aid in an investigation into workplace wrongdoing, including theft or claims of harassment. The Employee Polygraph Protection Act of 1988 (EPPA) covers most private-sector employers but doesn’t cover federal, state, or local governmental entities.

EPPA generally prohibits the use of lie detector testing in employment decisions. The term “lie detector” is interpreted broadly to include most types of devices that test for physiological changes when a person responds to a query. Most courts have found that written or oral honesty tests are not covered by EPPA.

Like most laws prohibiting discrimination in employment, EPPA also prohibits retaliation against employees or job applicants who exercise their rights under the law. An employer may not retaliate against an employee for filing a complaint under EPPA or assisting others in proceedings under EPPA. The Act also prohibits employers from using or inquiring about results of lie detector tests performed in the past (e.g., by law enforcement).

There are several exceptions under EPPA. First, government contractors are exempt when the testing is related to issues of national security. Second, there’s an exception for private-sector employers whose primary business is providing security services. EPPA also includes an exemption for employers that manufacture, distribute, or dispense controlled substances. This exemption allows testing of prospective employees who will have direct access to controlled substances as well as current employees during the course of an investigation into criminal or other misconduct.

The federal law allows use of polygraph tests in limited circumstances when an employer is conducting an investigation into either an economic loss or economic injury to the company. However, use of lie detector tests in these circumstances requires the employer to comply with numerous procedural protections, including rules governing the notice that must be given to the employee or job applicant, the procedures surrounding the actual test, and the use and disclosure of the test results. EPPA prohibits employers from requesting that employees prospectively waive or release their rights, including any procedures provided for under the law.

If an employer violates any provision of EPPA, it may be assessed a civil penalty up to $10,000 per violation. EPPA also allows employees or job applicants to bring lawsuits against an employer that allegedly violates the law. If the employer is found to have violated EPPA, the court or a jury may award damages for lost wages and benefits, require the employer to hire or reinstate the employee, and order an award of costs, including the employee’s attorneys’ fees.

Courts have ruled that when a collective bargaining agreement (CBA) provides greater rights and protections than EPPA, the Act does not take precedence over the CBA. Courts have also ruled that EPPA doesn’t preempt any state law that provides greater protections than EPPA.

Wisconsin’s Honesty Testing Law

The Wisconsin Fair Employment Act (WFEA) includes a specific provision that prohibits the use of honesty testing devices in various employment decisions. Wisconsin law generally prohibits employers from:
(1) Taking any adverse employment action based solely on the results of a lie detector test or a refusal to take a lie detector test;
(2) Requesting or requiring that an applicant or employee take a lie detector test, except in limited circumstances;
(3) Using the results of a previously taken lie detector test; and
(4) Retaliating against an employee or job applicant for exercising his rights under Wisconsin’s honesty testing law.

Like the federal law, Wisconsin’s honesty testing law contains several exceptions. First, applicants who are seeking employment to provide security or to design, install, or maintain security alarm systems may be asked to take a lie detector test. Second, employees seeking employment with companies that are authorized to manufacture, distribute, or dispense controlled substances may be required to take a lie detector test. Similarly, employees of controlled substances manufacturers may be asked to take a lie detector test as part of an investigation.

Third, law enforcement agencies can require prospective employees to submit to lie detector tests. Finally, Wisconsin law permits honesty testing in connection with a pending investigation involving economic losses or injury to the employer’s business, such as by theft or embezzlement. To fall within this exception, the employer must show that the employee had access to the property that is the subject of the investigation, and it has a reasonable suspicion that the employee was involved in the incident under investigation. The employer must also provide the employee certain written disclosures.

Employers must post a notice about employees’ rights under Wisconsin’s honesty testing law in a conspicuous place in the workplace. Before you can use the results of a lie detector test to take an adverse employment action, you must give the employee a copy of the test results.

As with the federal law, adverse employment decisions cannot be based solely on lie detector test results; there must be other corroborating evidence. Also, like EPPA, the employer must provide the employee or applicant pretest notice and comply with very specific procedural requirements, including providing the employee or applicant a copy of the questions to be asked by the tester prior to the test.

Honesty testing must be done at a reasonable time and location for the employee or applicant, and the employee or applicant must be permitted to end the test at any time. Wisconsin appellate courts have ruled that honesty tests that do not measure physiological responses are not covered by Wisconsin’s honesty testing law.

Wisconsin’s honesty testing law allows for fines of up to $10,000 for violations. The honesty testing law is part of the WFEA, and the procedures and remedies under the WFEA apply to violations of the honesty testing provision. That means that employees and job applicants cannot run to court immediately with a lawsuit but can file an administrative complaint with the Wisconsin Department of Workforce Development. If an employee or applicant prevails, he is entitled to back pay and benefits, job reinstatement (if he was fired), hiring (if he was denied employment), and attorneys’ fees and costs.

Best Practices

Here are some things to keep in mind if you are thinking about using lie detector tests:

• If you are not a governmental entity, a manufacturer, distributor, or dispenser of controlled substances, a contractor for government security services (e.g., for the U.S. Department of Homeland Security or the FBI), or a law enforcement agency that hires law enforcement officers, you shouldn’t ask or require employees or job applicants to submit to lie detector tests without consulting legal counsel. Both Wisconsin and federal law include numerous procedural protections for employees and job applicants and countless requirements you must comply with or risk significant fines (up to $10,000 per violation) as well as civil liability, including back pay, reinstatement of discharged employees, and payment of a prevailing employee’s court costs and
attorneys’ fees.

• If an employee or job applicant refuses to take a lie detector test, you cannot refuse to hire her or take an adverse employment action against her based solely on the refusal.

• Even if the test indicates the employee engaged in theft or embezzlement, you cannot take a job action based solely on the test results.

• You cannot use the results of a previous lie detector test to make any employment decision.

• If you suspect an employee has stolen your property (e.g., by embezzling money from the company), both federal and state law permit you to use honesty testing devices, but remember that you must satisfy a number of procedural requirements. It’s often better not to use a lie detector test if you suspect an employee has stolen company property. If you make an error under either federal or state law, you may end up owing the employee-thief money damages as well as his attorneys’ fees—truly adding insult to injury.

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This article, slightly modified to note recent updates, was featured in the May 2016 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.