Polygraph Protection Act snares unwary employers in workplace investigations

by on May 4, 2009 · 0 Comment POSTED IN: HR Info Center

You could get in trouble for ‘referring to’ test results

We cannot tell a lie: Although polygraph tests may look helpful when employees are suspected of theft or other dishonesty, using them poses some big legal risks. A new court case in South Carolina points out just how alert you must be to the Employee Polygraph Protection Act. This federal law seeks to shield workers from “lie detector” abuse during workplace investigations.

In this case, a bank employee was suspected of faking his own kidnapping to extract money from the bank. He was fired, but not until the police had administered two polygraph tests. Police and the man himself told bank officials – without their asking – that he’d failed both tests.

The employee sued, claiming the bank broke the law by firing him based on the test results. The courts knocked down that part of his case, noting that the bank would have fired him irrespective of the test results, because it had lost trust in him. But the bank got caught on another prong of the EPPA. The law also bars employers “using” or “referring to” polygraph tests. (It makes an exception for ongoing workplace investigations of economic loss to the business, but that didn’t apply here since the bank hadn’t lost money.)


An appeals court said the employee might be able to prove the bank somehow used or referred to the tests, and ordered a trial on that issue.

Learning for HR: If law enforcement has given one of your people a polygraph test, avoid engaging in any communication on the subject. And don’t administer a polygraph test unless it’s part of ongoing workplace investigations of a financial loss.

Cite: Worden v. SunTrust Banks, No. 07-1354, 4th Cir., 11/24/08.

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