Legal: Employers can use polygraphs in limited circumstances

Jeff Jones
Wednesday, May 9, 2012

Can a polygraph still be used by an employer to determine who is telling the truth?

At least since the passage of the Employee Polygraph Protection Act of 1988, private employers have been severely limited regarding when they can use a polygraph in seeking to determine the truth in an employee investigation. This law prohibits private companies from using polygraph examinations, except in very limited circumstances. The law does allow private employers to polygraph existing employees during an “on-going investigation” involving “economic loss or injury,” but the employer must jump through many hoops before administering a polygraph examination under the law.

First, the target employee must have had “access” to the property involved. Secondly, the employer must have “reasonable suspicion” that the employee was involved in the alleged incident. Before any testing can occur, an employee must receive a written statement which identifies the loss being investigated, the employer’s grounds for suspecting the employee, and the employee’s statutory rights under the law. An employee must also be told of his right to consult with an attorney before and during the examination. Even if all of these requirements are met, an employer may not, without additional supporting evidence, carry out an adverse employment action against an employee solely on the basis of the results of the polygraph test, or the refusal to take the polygraph test.

A recent example of the successful use of such a test occurred in Cummings v. Washington Mutual, 32 IER Cases 1057 (C.A. 11 2011), in which a bank asked the branch manager to take a polygraph test during an ongoing investigation of the disappearance of money from the branch. The court found that the bank properly asked the employee to submit to a polygraph test because it had a “reasonable suspicion” under the totality of the circumstances that the plaintiff was involved in, or responsible for, a money shortage from two teller cash dispenser machines.

In another case decided last year, however, an employer’s motion to dismiss was denied when the employer did not comply with the procedural requirements that it must provide the employee a written statement detailing the theft charges against her, or with other requirements that she be given written notice of the date, time and location of the polygraph exam, the right to consult an attorney, and the nature and characteristics of the polygraph instruments to be used and notify her of her right to terminate the polygraph exam. Miller v. Natural Resources Recovery LLC, 32 IER Cases 1335 (M.D. La. 2011).

The bottom line is that a polygraph can only be used by an employer in very limited circumstances and should not even be considered or suggested without the advice of counsel.
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Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.