Leakers, Liars And Polygraphs

By Mark F. Kluger and William H. Healey

In response to the leaking of transcripts of conversations between the President and several world leaders, including one regarding who will pay for The Wall (with apologies to Pink Floyd),  a White House spokesperson said on Friday that the administration may consider using lie detector tests to ferret out the leakers. While that spectacle may provide Saturday Night Live with another 6 months of material, before the idea motivates employers to go wild trying to find out who stole the stapler, it is important to understand the extreme legal limitations on the use of such truth-seeking methods.

The often overlooked federal Employee Polygraph Protection Act (“EPPA”) imposes substantial limitations on employers that all but eliminates an employer’s ability to strap an applicant or employee to electrodes and watch the needles dance. The EPPA, enforced by the U.S. Department of Labor since its 1988 enactment, prohibits employers from requiring, suggesting or causing an employee or prospective employee to submit to a lie detector test as a condition of employment. The law does not even allow an employer to “use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee.” So even if law enforcement administers the test, the employer cannot ask about the results or use them to make an employment decision. Nor can an employer take any adverse action against an employee or prospect for refusing to submit to a lie detector test. Employers that violate the EPPA are subject to injunctions and a $10,000 fine from the USDOL.  Another possibility is a civil action by employees or prospects for up to 3 years with damages including, reinstatement and back pay or lost wages in a failure to hire case.

There are some important exceptions. Private sector employers can request that employees submit to testing if administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation or an act of unlawful industrial espionage or sabotage [as opposed to lawful industrial espionage or sabotage—Seriously who writes these laws? Oh yeah, Congress. Never mind]. There are many conditions however. The employer must have reasonable suspicion that an employee, with access to the misappropriated property was involved in the incident. The employer must provide the employee with a notice of rights under the EPPA and a statement signed by someone authorized to legally bind the employer, which articulates the specific incident being investigated and the basis for the reasonable suspicion. That signed document must be maintained by the employer for 3 years (just long enough to be sued). Only with those pre-conditions satisfied can an employer require an employee to submit to testing and only to a Polygraph (as opposed to other forms of lie detection). So forget about  water boarding your employees to find out who took that last piece of birthday cake from the company fridge!

The EPPA also allows pre and mid-employment testing for armored car and security guard companies and employers in the pharma industry that produce controlled dangerous substances. At the same time though, even where testing is permitted, the EPPA also imposes stringent guidelines on the nature of questions that the licensed Polygrapher (which is not someone with more than one spouse) can ask and those questions must be submitted to the subject in writing and in advance. Even if an employer satisfies all of those procedural hurdles, no adverse action can be taken without a post-testing interview between employer and employee regarding the results. The employer must also present a written opinion to the employee explaining the reasons for the adverse action together with a copy of the questions asked and the charted responses.

We almost forgot, there is one more exception: the EPPA does not apply to the federal government.  So if last week’s threat was serious, the White House could in fact legally require staffers to submit to polygraph testing. That just might cause some drama in otherwise dull D.C.

As if the EPPA is not enough of a minefield for employers, New York and New Jersey have their own state law versions. Just remember, if you’re dealing with your own leakers and liars, and you’re not the government, a polygraph is no simple option Call us if you want to institute a polygraph testing protocol for cases of theft or industrial sabotage, and we will sort it out with you.