What Do You Mean I Can’t Require (or Even Suggest) a Pre-Employment Polygraph Test?

By Philip E. Goss, Jr., Esq.

As I have stated many times, I get the best subjects for this column from the issues each of you face daily. I represent a medium-size school operating in a mid-sized town in the South. The owners are a conscientious husband and wife team. Operating their school is a second career for each of them. While their previous business lives allowed them to gain a great deal of knowledge that ties nicely into school ownership, there are still issues they face that are foreign to them. When that happens, they contact me for an opinion.

Typically, we end our discussion with them telling me that they have, once again, given me fodder for a future column. My conversation with them last week was no exception.

These school owners do everything they can to follow all rules and regulations. Shortcuts do not exist in their school. The laws of the state where they are located permit pre-employment drug screening, and detailed background checks including the prospective employee’s credit history. Such tools require that the prospective employee consent, in writing, to such intrusive action. These authorizations are always properly obtained.

My clients’ question was simple and the logic behind such question was unassailable: If they are permitted to see if illegal drugs were coursing through the veins of a prospective employee, and were permitted to inquire about the employment and credit history of this prospective employee, why could they not subject him or her to a polygraph test as well?

We live in times where one bad apple can spoil the barrel that is your school’s hard-earned reputation. Hiring someone with something to hide, such as illegal or inappropriate history with minors, domestic violence or an earlier, off-the-records legal infraction, seems imprudent. By subjecting a prospective employee to a polygraph test, the school potentially protects both its reputation and its students from an identifiable harm.  

Unfortunately, absent certain limited circumstances, you cannot require or even suggest that a prospective employee undertake a pre-employment polygraph test. A martial arts school does not, in the eyes of the law, merit an exception.

Federal legislation, titled the Employee Polygraph Protection Act of 1988 (“EPPA”), is the final word on this issue. The basis for this law is that, while considered generally accurate, a polygraph or any other test that measures physiological factors is not infallible.

Certain industries are permitted to require polygraph tests prior to and during employment. However, such jobs are in security-related and pharmaceutical industries. Not surprisingly, jobs in national defense and the criminal justice/police arenas are also exceptions to this law.

There does exist a minor exception to the rule: A private employer who in good faith believes that an employee has committed an act that financially harmed the business (embezzlement of funds or some sort of intellectual property theft) can, after a number of strictly mandated notice steps best guided by legal counsel, ask that the employee take a polygraph test.

If the employee refuses and no proof exists other than the refusal to take the test, you cannot discharge, discipline or discriminate against that employee. In other words, an employee’s refusal to submit to a polygraph test can never, in and of itself, result in any sort of punitive action against an employee.

“So, Mr. Smarty-Pants Lawyer, what can happen if I violate the above rules?” The answer is clear that any non-exempt business that violates the EPPA is potentially liable for fines exceeding $20,000 plus reinstatement, back-pay and attorney’s fees and costs in any future litigation. The EPPA is not a “lon you want to poke with a stick!”

Finally, I trust that to some interior wall at your school, visible to your employees, is securely posted the state and federal mandated employment notices discussed in prior columns. I trust that you also have the federally mandated poster outlining the employee’s rights under the EPPA. If not, you are in violation of the EPPA and the possibility exists that you could be fined up a five-figure sum. I suggest that each of you immediately take a short walk to where the posters are located to be sure you compliant with this requirement.

Attorney Phil Goss, Jr. welcomes any email comments or questions at [email protected] and will attempt to respond personally, time permitting.