In most cases, requiring private-sector employees to take polygraph tests will create more harm than good. That's because the Employee Polygraph Protection Act of 1988 (EPPA) makes it illegal to "require, request, suggest or cause an employee or prospective employee to take or submit to any lie-detector test," except in limited circumstances, such as when you suspect certain thefts (see box below).
But what if you plan to fire an employee for some offense, such as harassment or violating a safety rule, and his or her attorney suggests the whole thing can be cleared up with a lie-detector test? As a new ruling shows, as long as the request truly comes from the employee (not the employer), lie-detector testing may be legal.
Recent case: When a coal mining company suspected a group of employees of theft and dealing drugs, the company told them they'd be fired. Through their union rep, several employees offered to take lie-detector tests. The company agreed it would reinstate anyone who passed.
Employees in the group who didn't want to take the test sued, alleging that the company violated the EPPA by using the tests. The court disagreed. It said the EPPA clearly allows lie-detector tests for employees accused of theft. For those employees accused of drug use, the court said the test request was legal because it came from union reps and not the employer. (Watson v. Drummond Company, No. 04-15726, 11th Cir., 2006)
Online resource: Find more details about EPPA compliance at www.dol.gov/compliance/laws/comp-eppa.htm.