Q. One of our employees filed a sexual harassment complaint against another worker. There were no other witnesses to the alleged harassment. After interviewing both parties, we are unable to resolve the credibility conflict. We asked the accused co-worker to take a polygraph exam, but he refused. Can we fire the employee for refusing to take the lie detector test?
A. No. In some circumstances an employer may require an employee to take a polygraph exam and discharge him for refusing to take or failing the exam, but the employer must comply with the strict requirements of federal law.
The statute limits the circumstances under which an employer can require an employee to submit to a polygraph. It’s legal only if all of the following conditions exist:
1. The test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business (such as theft, embezzlement, misappropriation or an act of unlawful industrial espionage or sabotage).
2. The employee had access to the property that is the subject of the investigation.
3. The employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation.
4. The employer executes a statement—provided to the employee before the test and signed by the employer—that describes the specific incident being investigated, explains the loss to the employer, states that the employee had access to the property that is the subject of the investigation and describes the basis of the employer’s reasonable suspicion that the employee was involved in the incident.
Even if all those criteria apply, you may not discharge an employee for failing or refusing to take a polygraph test unless you have “additional supporting evidence” justifying the termination. In other words, failing the lie detector or refusing to take the test alone is not a sufficient basis for dismissal.
Since sexual harassment allegations do not fall within the theft or embezzlement types of acts mentioned in the statute, requiring a lie detector test would not be appropriate. Thus, firing the accused for refusing to take the test would not be advisable.