From the 'Lectric Law Library's Stacks
Search The Library
During the past decade, more than two million private sector employees each year were asked to take a "lie detector" test. Based on these tests, approximately 300,000 workers annually were branded liars and fired, disciplined or not hired as a result.
Despite the claims of "lie detector" examiners, there is no machine that can detect lies with any degree of accuracy. The "lie detector" does not measure truth-telling; it measures changes in blood pressure, breath rate and perspiration rate, but those physiological changes can be triggered by a wide range of emotions such as anger, sadness, embarrassment and fear. In addition, a variety of medical conditions such as colds, headaches and neurological and muscular problems can distort the results. Indeed, as an American Medical Association expert testified during public hearings before Congress, "the [lie detector] cannot detect lies much better than a coin toss."
The ACLU has long favored protective legislation against indiscriminate "lie detector" testing in the American workplace, not only because it is unreliable, but also because it is an extreme invasion of privacy. For example, in order to establish "normal" physiological reactions of the person being tested, "lie detector" examiners ask questions that purposely embarrass, frighten and humiliate workers. An ACLU lawsuit in 1987 revealed that state employees in North Carolina were routinely asked to answer such questions as "When was the last time you unintentionally exposed yourself after drinking?" and "Who was the last child that got you sexy?" "Lie detectors" have been used by unscrupulous employers to harass union organizers and whistleblowers, and to coerce employees into "confessing" infractions they did not commit and falsely implicating fellow employees.
For all of the above reasons, the ACLU strongly supported passage of the Employee Polygraph Protection Act of 1988 (EPPA). As a result of the new law, most employees will no longer be forced to endure a humiliating and invasive process or have their jobs jeopardized by a machine that does not work.
Here are the ACLU's answers to some questions frequently asked by the public about "lie detector" testing and their rights under the new law. ** What does the Employee Polygraph Protection Act do?
The EPPA, with some exceptions, prohibits the use of "lie detectors" by private sector employers involved in or affecting interstate commerce. In the law, the term "lie detector" includes polygraphs, deceptographs, voice stress analyzers and "any other similar device that is used ... for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual." The ban applies to all random, and most preemployment, testing and will eliminate about 80 percent of the testing done in the private sector in the past. The EPPA does not prohibit drug tests or written honesty tests.
Under the EPPA, employers may not require, request, suggest or cause any employee or applicant to submit to a "lie detector" test, nor may they discharge, discipline or discriminate against any employee or job applicant for refusing to take such a test, for "failing" such a test, or for filing a complaint or exercising any other rights conferred by the legislation. The EPPA also requires employers to post a notice informing employees of the Act's provisions in a conspicuous place at the work site.
** Are there and exceptions to the ban on "lie detectors"?
Yes. The EPPA does not prohibit "lie detector" testing in certain circumstances:
* The Act does no prohibit "lie detector" testing of federal, state and local government employees.
* The federal government may administer "lie detector" tests to certain government contractors engaged in national security-related activities.
* Private security firms and companies that manufacture and distribute pharmaceuticals may test certain job applicants.
* Any employer may administer "lie detector" tests in connection with an ongoing investigation of an economic loss or injury to his/her business on these conditions: The employee under suspicion must have had access to the property, and the employer must state in writing the basis for a reasonable suspicion that the employee is guilty.
United States Department of Labor regulations, which can be obtained from your local Wage and Hour Division of the U.S. Department of Labor, explain in detail what categories of employees or potential employees can be tested and under what circumstances. ** Does the EPPA protect those employees who are tested from the worst abuses and misuses of the "lie detector" test?
Yes, even those employees who are tested are afforded a wide range of rights under the EPPA. Under the Act, the results of the "lie detector" test cannot be the _sole_ basis for an employer's action against an employee. Second, _during all phases_ of the testing, the employee is granted the rights:
* to stop the test at any time;
* not to be asked questions in a degrading or needlessly intrusive manner;
* not to be asked questions about beliefs, opinions or affiliations in the areas of religion, racial matters, politics, sexual behavior, or the lawful activities of labor organizations;
* to decline to take the test based on evidence that a medical or psychological condition might cause abnormal test responses.
Furthermore, _before the test is administered_ to an employee, that
employee must be given the following information in writing:
1) the date, time and location of the test, and notice of the right to consult with legal counsel or an employee representative before each phase of the test;
2) a list of all questions to be asked during the test;
3) the nature and characteristics of the tests and of the instruments involved;
4) the design of the testing area -- whether it has a two-way mirror, a camera, or any other device through which the test can be observed; 5) notice that either the employee or the employer may, with the other's knowledge and consent, make a recording of the test.
During the test, the examiner may not pose any questions that were not presented in writing to the employee before the test. And _after the test,_ before any adverse action can be taken, the employer must further interview the employee on the basis of the test results and provide him or her with a written copy of the test results.
** Who has access to "lie detector" test results?
The EPPA prohibits the disclosure of test results to anyone other than the employer who ordered the test, the employee, a court, government agency, arbitrator or mediator pursuant to court order. Moreover, old test results cannot be divulged to a prospective employer.
** What effect does the EPPA have on existing state and local laws?
More restrictive state laws or collective bargaining agreements will take precedence over the new federal law. For information about the law in your state or city, contact your local ACLU office, listed in the telephone directory. Detailed questions may be addressed to your local Wage and Hour Division of the U.S. Department of Labor. ** How can I assert my rights under the EPPA?
Your rights as an employee under the EPPA can be asserted and enforced in two ways: through legal action brought by the U.S. Secretary of Labor, or through a private lawsuit initiated by you as a wronged employee or prospective employee.
The Secretary of Labor is the federal official in charge of implementing and enforcing the EPPA. On being notified by you of a violation of the Act, the Secretary can bring an action in federal court for injunctive relief and civil penalties. If the Secretary's case is proved, the court may order the offending employer to stop the unlawful use of "lie detector" tests, and to reinstate you with back pay. The court may also fine the employer up to $10,000. The U.S. Department of Labor has regional offices throughout the country to which you can report an abuse, and they are listed in the telephone directory.
The EPPA also authorizes private civil actions in state or federal court, but such a legal action must be filed within three years of the alleged violation. If you win a lawsuit, the employer may be ordered to hire or reinstate you with back pay and may have to pay for your costs and legal fees. If you are contemplating bringing a lawsuit, call your local ACLU for advice.
** Since the EPPA does not cover government employees, what protection do they have from "lie detector" abuse?
Government employees have not been subjected to "lie detector" tests to the same extent as private sector employees; 98 percent of the estimated two million "lie detector" tests given each year in the recent past were administered in the private sector. Government employees are less likely to be asked to take such tests because they are protected by civil service rules, by the constitutional prohibitions against unreasonable searches and self-incrimination, and by state laws in some states. These protections, however, are not as complete as those afforded by the EPPA. The ACLU continues to lobby Congress to extend EPPA protections to government employees, and to represent those employees in court against "lie detector" abuse.
** In the wake of the EPPA, are employers devising other methods for detecting employee dishonesty?
Yes. Paper and pen tests, also called "honesty" or "personality" tests, which are not banned by the EPPA, are becoming increasingly popular with employers -- particularly the managers of large businesses. Many of the questions asked in these written tests are also extraordinarily intrusive. For example, the Minnesota Multiphasic Personality Inventory (MMPI) includes the following "yes" or "no" questions: "I have no difficulty in starting or holding my bowel movements"; "I am very strongly attracted by members of my own sex": "I believe in the second coming of Christ": and, "There is something wrong with my sex organs." This test, which has long been used in psychiatry as a diagnostic tool, is, in our view, wholly inappropriate when used routinely by employers.
Paper and pen tests in the workplace present the same problems that are inherent in mechanical "lie detector" testing: They have no scientific validity for detecting lies in a particular situation, and they pry into extremely private matters such as an individual's religious beliefs and sexuality. The Office of Technology Assessment of the U.S. Congress is studying the ethical and social implication of written "honesty" tests and their use in the workplace.
The ACLU opposes all workplace tests that violate privacy or require workers to divulge personal information that is not relevant to job performance.
** If employers cannot use "lie detectors," what can they do to combat employee dishonesty and theft?
First of all, there is no convincing evidence that widespread use of "lie detector" tests in the workplace actually reduced dishonesty and theft. Those states that restricted "lie detector" testing for a number of years did not have a higher rate of employee theft than states that allowed it.
Second, employers have a variety of alternative techniques at their disposal that are not overly intrusive. They can do what good managers have been doing all along -- check references before hiring, maintain good security and inventory controls and, above all, treat workers fairly.
American Civil Liberties Union
132 West 43rd Street
New York, NY 10036
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.