Don't Even Threaten an Employee with a Polygraph Exam Unless You Are Sure the Circumstances Allow It

Employees are not always honest.

While this statement is very true (and very obvious), it does not mean that employers have free rein to test when or whether their employees are being truthful. Though lie detector tests can be useful in detecting if an employee is lying or not, federal law contains strict guidelines on when employers can even request that an employee take such an examination.

One Orlando employer, a medical office, recently found itself sued by an employee after a supervisor threatened employees that the company would require them to submit to lie detector tests. Two patients of the medical office had complained they were missing money from their personal belongings. The supervisor then called a meeting of the staff and informed them that a law enforcement investigation was underway. The employee who sued the company later alleged that the supervisor told the employees that they would have to take a polygraph examination as part of the investigation. When the police came to interview the employees, they also allegedly said that a lie detector test would be required by the employer.

The federal Employee Polygraph Protection Act of 1988 (EPPA) prohibits most employers from requiring, requesting, suggesting, or making any employee or potential employee take a lie detector test. Simply requesting that an employee take one is a violation.



The EPPA, however, does contain exemptions that allow employers to ask for polygraph exams in certain circumstances. One is the "economic loss or injury" exemption, such as a theft, embezzlement, or misappropriation. For an employer to qualify for this exception, the employee must have had access to the stolen property; the employer must have a reasonable suspicion that the employee was involved in the activity under investigation; and the employer must fill out certain paperwork and give it to the employee before the test.

The court in Orlando found that the employee who sued was one of only five employees who were included in the employer's investigation. Because so few employees had access to the stolen money, the court found it logical to suspect all five. Under the facts of the case, the court found that the employer complied with the exemption and dismissed the case.

Employers who have had equipment or money stolen, or whose customers or patients have been subjected to theft, should not automatically assume they will fit within the exception discussed above. In offices where many employees work, not every single employee can be asked to take a polygraph examination without some sort of reasonable suspicion on the part of the employer. "Fishing expeditions," in which many employees are asked to take exams even though there is no reasonable suspicion that they committed a theft, are not allowed by the federal law.

Employers also cannot terminate a worker's employment based solely on the results of a polygraph. They must have some "additional supporting evidence," which may include admissions or statements made by an employee before, during, or following the exam. Refusal to take the test cannot result in termination unless there is additional supporting evidence.

The EPPA has stringent requirements, and merely suggesting to an employee that she has to take a lie detector test can spark a lawsuit. Though employees are not always honest, and it can be infuriating when they steal from an employer or its customers, employers have to be careful about how they go about investigating thefts.

About the Author

Jack Lord is a partner with Foley & Lardner's Orlando office and a member of the firm's Labor and Employment Practice. He has been certified by the Florida Bar as a specialist in Labor and Employment Law. Mr. Lord works with private and public employers in matters involving employment-discrimination litigation, labor issues, and general labor and employment law advice. He can be reached at 407-244-3246 or at jlord@foley.com.