Polygraphs and privacy – Employee rights against testing during investigations

As polygraph testing has become more commonplace during internal investigations, questions about employees’ rights to privacy have emerged. Can employers force employees to submit to a lie detector test? What protections exist against self-incrimination? Understanding the applicable laws and regulations is critical for both employers and employees navigating this complex issue.

While public sector employers are constrained by the Constitution, private companies generally have more leeway in utilizing polygraph tests. The Employee Polygraph Protection Act prohibits most private employers from using lie detector tests for pre-employment screening or random testing during employment. The law permits polygraph tests for ongoing investigations into “economic loss or injury” to the company. The economic loss provision gives employers significant discretion in requiring polygraph exams during audits, theft inquiries, or other internal investigations.

Refusing to take a polygraph

Employees asked to take a polygraph have the option to refuse. This likely results in presumed guilt and immediate termination. While refusal cannot be explicitly used against an employee in court, being dismissed for failing to comply with an investigation creates prejudice nonetheless. Some exceptions exist if employees have legitimate medical reasons they cannot safely undergo polygraph testing. Certain states also provide limited protections, for example preventing employers from taking adverse action against employees who merely request to consult an attorney before consenting to polygraph testing.

Using polygraph results

Information and admissions gained from polygraph exams generally cannot be used as sole evidence of wrongdoing against an employee. Termination or punishment based on uncorroborated polygraph results leaves employers vulnerable to wrongful termination lawsuits. The best practice is for employers to pursue additional evidence that validates or contradicts polygraph findings before taking action against an employee. Even if state law permits polygraph testing, acting solely due to test failure creates litigation risks. In most jurisdictions, polygraph test results are considered unreliable pseudoscience and are inadmissible as evidence. An employee dismissed due to a failed polygraph cannot then have the exam results used against them in a subsequent criminal case or lawsuit. Efforts to admit polygraph evidence are challenged under Daubert standards excluding junk science from the courtroom.

Privacy implications

Beyond direct legal protections, mandatory polygraph testing also raises alarms around employee privacy. Tests delve into sensitive topics far beyond the scope of the investigation at hand. Employees subjected to testing are put in a vulnerable position, often under threat of termination for refusing. Many consider the practice unethical, akin to unreasonable search and seizure. Data privacy laws provide some constraints around how polygraph results are stored or shared. However, privacy advocates argue more protections are needed to prevent employer overreach and abuse.

Alternatives to polygraph testing

Given the concerns around polygraphs, more employers utilize alternative investigatory tools like forensic auditing, video surveillance, and metadata tracking on digital systems. These techniques bolster investigations without the reliability issues and ethical pitfalls of lie detector test florida exams. Many experts encourage companies to rethink their reliance on polygraph testing in favor of less invasive and more defensible approaches to investigations. Deception detection technology continues advancing as well, which may soon provide alternatives lacking the weaknesses of traditional polygraph methods.