Liar! Liar! - Employee Polygraph Tests in Texas

Parker Puppy Professionals Inc. employed Fifi as a salesperson at its dog clothing and gourmet food boutique. Boomer, the store manager, noticed that dog biscuits, rhinestone dog collars and money from the cash register were “short” on days that Fifi worked. Boomer asked Fifi about the missing biscuits, collars and money, but Fifi denied knowing about any “shortages.” Management wants to subject all employees, including Fifi, to polygraph lie detector tests.

Can the employer require the employee to take a lie detector test?

The federal Employee Polygraph Protection Act (EPPA) ) has such broad prohibitions, it virtually eliminates polygraph exams from the workplace. For that reason, there is little case law interpreting the statute. The EPPA narrowly limits when private employers can administer a polygraph lie detector test to any current or prospective employee. More importantly, the federal act prohibits private employers from

(1) directly or indirectly requiring, requesting, suggesting, or causing any employee or potential employee to take or submit to a polygraph lie detector test, or

(2) relying upon (or even asking about) the results of any lie detector test.

Finally, an employer may not terminate or discriminate against an employee or potential employee who takes or refused to take a polygraph lie detector test.

One exception to the general rule is that an employer can request an employee to take a polygraph lie detector test in connection with an ongoing investigation of economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage. If a request is made, the employer must execute a signed statement and deliver it to the examinee before the test stating

(1) the event

(2) the specific economic loss or injury

(3) the employee’s access to the property, and

(4) the basis of reasonable suspicion that the employee was involved

Even if the employer reasonably identifies an employee who may be involved with a specific incident of economic loss and takes the proper procedural steps, the employer still cannot discharge or otherwise discriminate against the employee solely on the basis of the polygraph test results. The employer must have additional supporting evidence before taking adverse employment action.

Given all these requirements and pitfalls, an employer might be better off discharging an employee prior to a polygraph examination, simply based on the mere suspicion of theft or other criminal involvement.

Failure to follow all federal statutory requirements risks statutory liability under the EPPA, including liability to the employee and possible civil penalties. An employee’s possible remedies include employment reinstatement, lost wages and benefits, emotional distress, costs, and attorneys’ fees. The Act also subjects employers to possible civil fines up to $10,000.

For more information, see Employee Polygraph Protection Act, 29 U.S.C. §§ 2001-2009 (1999); 29 C.F.R. pt. 805, or read these interesting links:

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