Polygraph Tests

What Is A Lie Detector?
A lie detector can be a polygraph, voice-stress analyzer, psychological-stress evaluator, deceptograph, or any similar mechanical or electrical device used to make a determination about someone’s honesty.

What Is A Polygraph?
A polygraph is an instrument that records “continuously, visually, permanently and simultaneously changes in cardiovascular, respiratory and electrodermal patterns” for the purpose of determining whether someone is being honest or not.

Can An Employer Require a Polygraph Test?
Basically, yes, although your refusal cannot be the sole basis for any adverse job action. Federal law prohibits a private employer from directly or indirectly requiring or suggesting that an employee or job applicant take a lie-detector test. Nor can an employer inquire about or use any previous lie-detector test of the employee or applicant. An employer cannot discharge, discipline, discriminate against or deny employment or promotion to any employee or applicant who refuses to take a lie-detector test, or any employee who has filed a complaint or started a lawsuit against the employer for violating the provision.

Private employers can test employees in connection with an ongoing criminal investigation. If they have a “reasonable suspicion” of employee involvement in embezzlement, theft, misappropriation or industrial espionage or sabotage, they can test provided that the employee had access to the property under investigation and the employer is on record with a statement outlining the incident and the basis of his suspicion.

Also, prospective employees of any private employer whose primary business purpose consists of providing armored car personnel, personnel engaged in the design, installation, and maintenance of security alarm systems, or other uniformed or plainclothes security personnel may be tested if they will work in facilities, materials, or operations having a significant impact on the health or safety of any State or politic subdivision–including electricity and nuclear power facilities, public water supply facilities, shipments or storage of radioactive or other toxic waste materials, public transportation, currency, negotiable securities, precious commodities or instruments, or proprietary information.

Federal, state, and local governments and their subdivisions may require tests. Contractors and their employees dealing with the Defense Department, Energy Department or FBI may be tested. The CIA, the National Security Agency and the Defense Intelligence Agency can all test applicants, consultants, and anyone with access to secret materials. Job applicants for private security-related businesses (guards, armored car personnel, etc.) may be tested. Employers must comply with state and local laws or any collective- bargaining agreements prohibiting testing. North Carolina Statutes have not addressed this area of polygraph testing.

What is the Procedure for Testing?
Only a bonded state licensed polygraph examiner may give the test. You must receive a reasonable written notice of the date, time and place of the test. You must be informed of your legal rights (including right to obtain legal counsel), and the nature of the test and instruments used. You must be informed of the questions to be asked, and only those questions are permitted. You may not be asked questions in a manner designed to degrade, or any that deal with race, religion, politics, sex, and union affiliation. The test can be no shorter than 90 minutes, and you have the right to terminate the test at any time. You may be excused from the test if there is sufficient evidence from a physician that the examinee is suffering from a medical or psychological condition or undergoing treatment that might adversely affect the test results. After the test and before any adverse action can be taken against the employee, the employer must interview the employee on the test results, and give the employee a written copy of the results, questions and examinee’s responses.

Who Can See the Results?
No one can obtain the results except the examinee, someone designated by the examinee, the employer or governmental agency that requested the test or any person, court or government agency with a warrant for the information.

What Happens If A Company Does Not Abide By The Law?
Companies are required to post the notice of the law in a conspicuous place. The labor secretary can investigate and inspect companies suspected of violating the act and issue subpoenas for the purpose of any hearing or investigation in connection with the Employee Polygraph Protection Act’s provision and bring court cases against an employer who violated the act. A company can be fined up to $10,000 in civil penalties for violation of the act. A job applicant or employee can sue an employer who has violated the act, but the suit must be brought up within three years of the alleged violation. An employer may be held liable for legal and equitable relief, including employment, reinstatement, promotion and the payment of lost wages and benefits.