The Employee Polygraph Protection Act: The End of Lie Detector Use in Employment Decisions?

Article excerpt

During the 1980s explosive growth occurred in the use of lie detectors by employers. Employers used lie detectors for three purposes: (1) pre-employment screening; (2) random post-employment screening; and (3) to investigate specific instances of alleged wrongdoing. The use of lie detectors by employers has continued to increase despite the growing consensus in the scientific community that these tests lack validity. In fact, in pre-employment and random post-employment polygraph testing, the most common work place tests, the American Medical Association estimated that the test results were only slightly better than chance.' Even assuming an 85 percent accuracy rate, fifteen out of every one hundred people tested were incorrectly identified as deceptive. Because of the inaccuracies, tens of thousands of individuals were wrongfully labeled "deceptive" and suffered adverse employment consequences.

Concern for the nation's workforce prompted the U.S. Congress to pass the Employee Polygraph Protection Act. The Act, effective on December 27, 1988, significantly restricts the use of lie detectors. This note is a critical examination of the new federal law and the regulations promulgated by the Department of Labor to explain its implementation. This legislation marks the first time that the federal government has exercised control over this highly controversial method of screening prospective employees and monitoring current employees. It should be noted, however, that many states have enacted statutes regulating lie detector use by employers. The federal law does not preempt any state or local law or any collective bargaining agreement which is more restrictive, Therefore, it is essential that. employers utilizing polygraph examinations be aware of these laws, as well as the new federal law, as the former may be more comprehensive or prohibitive.

The Employee Polygraph Protect-.on Act outlaws the use of lie detectors, except polygraphs, and severely restricts when employers can employ polygraph examinations. The term lie detector is broadly defined to encompass devices that register physiological responses, such as voice tremors, breathing abnormalities, or blood pressure fluctuations, which are then used to render an opinion regarding the honesty or dishonesty of the individual tested. Many types of devices meet this definition, including polygraphs, deceptographs, voice stress analyzers, and psychological stress evaluators. A polygraph is an instrument that measures changes in blood pressure, respiration patterns and perspiration. This analysis of the Employee Polygraph Protection Act and regulations leads to the recommendation that even when polygraph testing is permitted, small businesses should refrain from utilizing such examinations. The law and regulations are extremely complex. To correctly interpret and apply the law, small businesses will have to hire legal counsel, the cost of whose advice is likely to outweigh the benefits gained from the polygraph results. This is particularly true since the law restricts the use of the test results. An employer cannot make an adverse employment decision solely on the basis of the polygraph results. There must be an additional basis for the negative decision. Moreover, even with legal guidance, small businesses that utilize polygraphs in employment decisions can expect to be sued and the potential penalties and legal liabilities under the Act are great.

Testing Covered

The Act recognizes that there are many different types of lie detectors, including not only polygraphs, but also various other devices used to render an opinion as to the truthfulness of the person being tested. Under the new law all lie detectors, except polygraphs, are specifically prohibited from being used in the employment context. A polygraph is defined as an instrument that records continuously, visually, permanently, and simultaneously the changes in cardiovascular, respiratory and electrodermal patterns which are then used to render an opinion regarding the honesty or dishonesty of an individual. …