Hiring & Recruiting

Can Employers Use Lie Detectors?

No one wants to be lied to. Employers are acutely sensitive to this. If an applicant lies about qualifications, it can mean a lot of wasted time, money, and energy when it is eventually discovered that the individual is not competent for the role. It could even mean embarrassment for the organization if the individual claimed to have qualifications that did not exist and it is publicly discovered. This is one of the many reasons employers usually opt to perform some form of reference check or background check on applicants.

But, it can be tempting to go further. What if an employer wants to ensure an employee or applicant is not lying? Would you consider asking an employee or applicant to submit to a lie detector test?

Why Might an Employer Be Tempted to Require a Lie Detector Test?

Employers have a strong incentive to want to ensure employees are truthful. After all, the employer is liable for the safety of all employees—the stakes are not low. What if an applicant lied to cover up unfavorable background, such as previous history of criminal activity or violence, for example?

Employers might also fear, as we mentioned above, that an applicant might lie to hide the fact that he or she is not qualified for the role.

An employee could also lie during an internal investigation of an incident or complaint, thus hindering the investigation.

Yet another concern is having an employee who is prone to lying who might be caught lying to customers, which can make the company legally liable depending on the circumstances.

As these examples show, there are many circumstances in which a company will have a vested interest in trying to confirm the truth. Read on to understand that there are definite limits on how far an employer can go in this pursuit.

Are There Any Circumstances Where This Would Be Okay?

We posed the question earlier, “Would you consider asking an employee or applicant to submit to a lie detector test?”

Likely, you said “No” because it’s actually illegal in most cases. Despite all of the reasons we outlined above, employers are limited in their ability to push this issue. An employer can, of course, conduct a background and reference check (within limits), but the Employee Polygraph Protection Act (EPPA) actually prohibits most private employers from using a lie detector test on applicants or employees in the majority of cases. There are exceptions, however.

The EPPA also prohibits employers from firing or otherwise discriminating or retaliating against someone who refuses such a test or who brings a complaint over such a situation.

It’s important to note that this law defines “lie detector” and “polygraph” as follows, per the Department of Labor’s website on the topic[i]:

  • “A lie detector includes a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or similar device (whether mechanical or electrical) used to render a diagnostic opinion as to the honesty or dishonesty of an individual.”
  • “A polygraph means an instrument that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory, and electrodermal patterns as minimum instrumentation standards, and is used to render a diagnostic opinion as to the honesty or dishonesty of as individual.”

No Lie Detectors: What Are the Exceptions?

Despite the fact that the EPPA prohibits most private employers from using lie detector tests, there are a few exceptions.

Perhaps the most notable exception is that employers of certain jobs (defined within the law) are allowed to utilize lie detector tests for those jobs. These are professions in which security is of a high importance for the role, such as security firms or drug manufacturers and dispensers[ii].

Another exception to the EPPA is the fact that federal, state, and local government employers are not subject to it.

Yet another exception is that lie detector tests are sometimes allowed for private employers during an investigation of theft or embezzlement that caused loss for the employer. That said, even in these cases there are strict regulations for how the testing is conducted. For example, the test must be conducted by a licensed and bonded examiner or by someone with professional liability coverage. There are other rules surrounding this as well; if you find yourself in this situation, be sure to consult legal counsel to ensure you stay within the bounds of the law.

What’s your take? Has your organization ever had the need to utilize lie detector tests?

*This article does not constitute legal advice. Always consult legal counsel with specific questions.

[i] http://www.dol.gov/whd/regs/compliance/whdfs36.htm

[ii] This list is not comprehensive.

 


About Bridget Miller:

Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.