Polygraph

Polygraph Examinations In The Workplace
To Test Or Not To Test?

March 29, 2007

By Kent Perkins , P.I
Managing Partner and Sr. Executive Investigator.
Diversified Risk Management, Inc.


polygraph machineAlmost everyone knows polygraph evidence is inadmissible in court. Does that mean polygraphs are meaningless, or their results are worthless? No, not at all.

Polygraph examiners are often excellent investigators and good interviewers whose work is vital in certain applications, such as pre-employment investigations for law enforcement agencies, in ruling out certain suspects in police homicide cases, and in verification of the veracity of foreign Federal agents on highly critical assignments involving national security.

However, before deciding to bring a Polygraph Expert into a civil matter involving workplace misconduct, one should be fully aware of the possible negative and sometimes very costly ramifications.

Simply, there are three possible results to any Polygraph Examination:

  1. Pass (the Examinee told the truth),
  2. Fail (the Examinee lied), or
  3. Inconclusive (The Examiner does not have a clear reading from his instruments and can not determine to his satisfaction whether the Examinee lied or told the truth.

Let’s consider a test case, and look at the possible ramifications of each result: In our hypothetical example, someone in your office stole $5,000.00 from a wall safe. Only five people had access to the safe and its combination. All five are then tested by a competent Polygraph Examiner. You have a “prime suspect” in mind; let’s examine his potential results from the test:

  1. Your employee passed a polygraph test:
    1. This means he is either innocent or that knows how to fool a polygraph test.
      1. Truly innocent people usually do pass such tests, but so can guilty people who have studied and practiced the skill of fooling such tests. Information on how to fool these tests is readily available online at www.passapolygraph.com and on many other websites. Therefore, passing a polygraph test does not, unfortunately, totally clear a suspect.
  2. Your employee failed the polygraph test:
    1. This means your employee, most likely, stole the $5,000.00. He will either admit to it, or not.
      1. If he admitted to it; all is well and good. Be sure the admission is committed to writing and captured on tape, and that the admission is provably not coerced, because such polygraph-induced admissions are often retracted and closely scrutinized upon third party review.
      2. If he still denied it, in the face of the failed examination:
        1. Terminating or taking any action against such an employee imperils the company because doing so is in violation of Federal law, the Polygraph Act, which clearly states that you, the employer, can be held civilly liable for taking any action based on the failed polygraph test. So, after discovering who probably stole the $5,000.00, you’re faced with the worst possible result: being forced to keep a dishonest employee who is elevated, through the failed polygraph test, to “specially protected status.” This is the greatest injustice of all. Finding another reason to terminate the dishonest employee within the next few years is quite risky; you would almost certainly invite charges of subterfuge, retaliation, and violation of the Polygraph Act with a Federal fine of $10,000.00 for each occurrence.
  3. Your employee’s test was inconclusive:
    1. This means your employee might have stolen the money, but, then again, he might be innocent. But you knew that before the test. And worse, if 4 of the 5 tested people were cleared by passing the test, and one is left with an “inconclusive” result, it is impossible for you, the employer to not strongly suspect that last employee is your thief, when, in fact, this may not be the case at all. Having been tainted by testing “inconclusive,” employees have sometimes claimed they felt a great deal of stress; this can lead to poor performance, and worse - - - medical claims, charges of retaliation, and the worst of all potential results, litigation.

All employers must be aware of the EPPA:
Let’s back up a minute and look at the legal issues involved in polygraph testing. On December 27, 1988, the Employee Polygraph Protection Act (EPPA) became law. You may read this in full athttp://www.dol.gov/dol/compliance/comp-eppa.htm.

This Federal law established guidelines for polygraph testing and imposed restrictions on most private employers. The following is a brief summary:

Who’s affected by EPPA?

In short, as an employer, you probably are. This legislation only affects commercial businesses. Local, State and Federal governmental agencies (such as police departments) are not affected by the law, nor are public agencies, such as a school system or correctional institution. In addition, there are exemptions in EPPA for some commercial businesses. These are:

  1. Businesses under contract with the Federal Government involving specified activities (e.g., counterintelligence work).
  2. Businesses whose primary purpose consists of providing armored car personnel, personnel involved in the design, or security personnel in facilities which have a significant impact on the health or safety of any state. Examples of these facilities would be a nuclear or electric power plant, public water works, or toxic waste disposal.
  3. Companies that manufacturer, distribute or dispense controlled substances.

How does EPPA affect businesses which are not exempt?

  1. In general, businesses cannot request, suggest or require any job applicant to take a pre-employment polygraph examination.
  2. Businesses can request a current employee to take a polygraph examination or suggest to such a person that a polygraph examination be taken, only when specific conditions have been satisfied. However, the employer
    1. cannot require current employees to take and examination, and
    2. if an employee refuses a request or suggestion, the employercannot discipline or discharge the employee based on the refusal to submit to the examination.

When CAN you ask a current employee to take a polygraph?

Your labor and employment lawyer should always be the final decision maker on whether to consider using a Polygraph Examiner in a workplace investigation. In general, the following conditions must be present for an examination to take place:

  1. The incident must be an ongoing, specific investigation.
  2. It must be an identifiable economic loss to the employer.
  3. Obtain a copy of the Employer Polygraph Protection Act of 1988
  4. Provide the employee with a written statement that includes:
    1. identification of the company and location of employee
    2. description of the loss or activity under investigation
    3. location of the loss
    4. specific amount of the loss
    5. type of economic loss
    6. how the employee had access to the loss
      Note: access alone is not sufficient grounds for polygraph testing
    7. what kind of reasonable suspicion there is to suspect the employee of being involved in the loss.
  5. The Statement provided to employee MUST be signed by someone other than the polygraph examiner, who is authorized to legally bind the employee, and MUST be retained by the employer for at least 3 years.
  6. Read the Notice to Examinee to the employee, which should be signed, timed, dated and witnessed.
  7. Provide the employee with 48 hours advanced notice (not counting weekends or holidays) to the date and time of the scheduled polygraph test.
  8. Provide employee with written notice of the date, time and location of the polygraph test, including written directions if the test is to be conducted at a location other than at the place of employment.
  9. Maintain a statement of adverse actions taken against the employee following a polygraph test.
  10. Conduct an additional interview of employee prior to any adverse action following a polygraph test.
  11. Maintain records of ALL of the above for a minimum of 3 years.
  12. Employees may not waive their rights.
  13. Police and investigators are not exempt and must comply if they are conducting an employment related polygraph test, i.e., when conducting a polygraph test on an internal theft for a missing deposit.Information about a polygraph provided to the employer by a police officer or investigator is prohibited under the Act, since employers are not allowed to use, accept or inquire about the results.
  14. There is a $10,000 penalty for EACH violation of the law.
  15. Check out the credentials of the polygraph examiner that you use and verify that the examiner meets EPPA requirements. Never hesitate to ask for written proof of licensing, liability insurance, etc.
  16. Use your company letterhead on all forms you provide to the employee.
  17. And most important of all: Have your corporate attorney review your actions before, during and after the examination to assure your compliance of EPPA.

If this all seems a bit complicated, it’s because it is.

You might consider other means which can also achieve your goal, solving the crime, without all the potential liability and other problems associated with lie detectors.

Are there any cost-effective alternatives to polygraph examination?

The answer is a resounding, “Yes.”

Skillful investigators who specialize in the art and science of investigative interviews can match or surpass the results of a team of polygraph examiners. We rely on counterintuitive, relaxed and provably non-coercive interviews to get us the results in cases involving any kind of employee malfeasance, from theft to drug sales to corporate espionage and sabotage.

People can be thoughtfully and thoroughly interviewed without our creating an atmosphere of tension, confrontation and heated debate. Using a disarming level of respect, working within very comfortable settings in which the interviews take place, our investigators give employees good reasons to be honest with the Company without hurling accusations or threats and without making promises of leniency, immunity from termination or prosecution.

Over the years, many excellent attorneys have relied upon our investigators and our specialized art of highly skilled interviewing to solve complex cases for corporate clients, large and small.

For more information about our service offering concerning investigative interviews, undercover investigations, computer forensics, and other workplace related investigations, visit us online at www.drminc.us or call us today +800.810.9508

Copyright 2007, the Power of Intelligent Information (PII). The information contained in the PII Quarterly Newsletter may not be published, broadcast or redistributed without the prior written authority of Diversified Risk Management, Inc.