The ability of employers to use polygraph testing is limited under state and federal law. The requirement for a polygraph test for job applicant screening is generally banned for private employers in all but a few industries, such as armored cars, alarm companies, security guards, employees at power plants and other sites. Generally, government employees are not subject to the same prohibition against polygraph testing as are private employees.
California Labor Code §432.2, prohibits a private employer from demanding or requiring any employee or applicant for employment to submit to or take a polygraph, lie detector, or similar test or examination as a condition of employment or continued employment. This California law restriction, however, does not apply to federal government, state government or local government employees. An employer may not request an employee to take such a test without first advising the employee in writing at the time the test is to be administered of their rights guaranteed under Labor Code §432.2.
Under the Federal Employee Polygraph Protection Act of 1988, polygraphs may be used by private employers during investigations involving economic loss or injury to the employer’s business, theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage. Certain conditions are required, including that the tested employee had access to the property that is subject to the investigation; the employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and the employer executes a statement provided to the employee before the test that sets forth with particularity the specific activity or incident being investigated and the basis for testing particular employees. The statement must be signed by the employer and retained for at least three years, and must contain an identification of this specific economic loss or injury to the business of the employer; a statement indicating the employee had access to the property that is the subject of the investigation; and a statement describing the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation.
Employees whose rights have been violated through the use of a polygraph may, under certain circumstances, bring legal action within three years and seek reinstatement, promotion, and back pay.
For more information or for a free case evaluation call 1-877-219-8481