Brett T. Abbott
Written by Brett T. Abbott
Employers may feel the need from time to time to ask or require employees to submit to polygraph tests, often called lie detector tests. I’ve often been asked if these tests are legal in California. This article will explore the legal ramifications of these tests in the workplace.
The Employee Polygraph Protection Act of 1988 places very strict regulations on when an employer may use polygraphs. First, federal law restricts the use of polygraph tests as employee screening devices. Federal law also prohibits almost all employers from requiring or suggesting that applicants undergo these tests. Specifically, the following is prohibited:
– Requiring, requesting, suggesting or causing, directly or indirectly, any employee or prospective employee to take or submit to a polygraph test;
– Basing employment decisions solely on results of a polygraph test; and
– Disciplining, discharging or discriminating against any employee or applicant for refusing to take a polygraph test (29 U.S.C. 2001-2009).
However, there are some narrow exceptions that have been carved out of the federal law. Under extremely limited circumstances, an employer may perform a polygraph test on the following people:
– Prospective employees of security guard firms;
– Employees involved in the manufacture, distribution or dispensation of controlled substances; and
– Current employees who are reasonably suspected of being involved in a workplace incident that resulted in an economic loss or injury to the business (29 U.S.C. 2006).
California also has laws on the books regarding polygraph tests. California law prohibits retaliating against or discharging an employee for refusing to submit to a polygraph, lie detector or similar test (Labor Code § 432.2).
Despite the existence of these narrow federal exceptions, the safest course of action is to avoid these tests entirely. The accuracy of polygraph tests has been questioned for years, and the risk employers run in requiring their employees to submit to such tests will almost certainly outweigh the benefit.
This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler & Abbott LLP (firstname.lastname@example.org). For specific employment law advice or other legal assistance, contact Gubler & Abbott, (559) 625-9600, 1110 N. Chinowth St., Visalia, CA 93291 (www.thecalifornialawyers.com).