Jul 25

Can Employers Use Lie Detectors? Here’s the Truth

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If you think a lie detector violates California law, your instincts are basically correct.

If you think a lie detector violates California law, your instincts are basically correct.

If an employer is demanding or even politely asking that you submit to a polygraph, voice stress analyzer, or other “lie detector” test, here’s the truth: the Employee Polygraph Protection Act (EPPA) might entitle you to substantial compensation. If you’re a cop anywhere in California, don’t let your department cop an attitude if you refuse to take a lie detector test. The Peace Officer’s Bill of Rights Act (POBRA) entitles a police officer to enough cash to buy a lifetime supply of donuts if his department compels him to submit to a lie detector test or takes any disciplinary action against him for refusing or failing to submit to a lie detector.

Do Private Sector Employees Ever Have to Take Lie Detector Tests?

The EPPA prohibits a private sector employer from: (1) requiring, requesting, suggesting, or causing an employee or prospective employee to take or submit to any lie detector test; (2) using, accepting, referring to, or inquiring about the results of any lie detector test of an employee or prospective employee; or (3) discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against an employee or prospective employee because of the test results, because he refuses to take a test, because he exercises any rights under the EPPA. ((29 U.S.C. §2002.))

Contrary to the EPPA’s namesake, the EPPA covers more than just polygraphs. “Lie detectors” include polygraphs, deceptographs, voice stress analyzers, psychological stress evaluators, and other “similar mechanical or electrical devices” that help the tester form a diagnostic opinion about the subject’s honesty or dishonesty. ((29 U.S.C. §2001(3).)) But the EPPA only covers similar mechanical or electrical devices. Thus, the EPPA should prohibit an employer from asking an employee to submit to a facial EMG, but not from asking him to ingest sodium thiopental, hypnotizing him, or even slapping him across the face.

The EPPA permits an employer to “request” that an employee take a polygraph (though no other kind of lie detector) test if: (1) the test is “in connection with” an ongoing investigation into a theft or other economic loss or injury to the employer’s business; (2) the employee had access to the property that is the subject of the investigation; (3) the employer reasonably suspects that the employee was involved in the incident or activity under investigation; and (4) the employer provides a signed statement describing the incident or activity, the basis for the employer’s suspicion that the employee was in on it, and other details. ((29 U.S.C. §2006(d).))

Do Police Officers Ever Have to Take Lie Detector Tests?

In California, a police department better not cop an attitude against a cop for refusing a lie detector test. That’s because POBRA prohibits a public safety department from: (1) “compelling” a public safety officer to take a lie detector test against his will; (2) taking disciplinary action or other “recrimination” against him for refusing a lie detector test; or (3) entering a comment in an investigator’s notes or anywhere else that he refused, or didn’t take, a lie detector test. ((Gov. Code §3307(a).)) In addition, evidence that he took or refused to take a lie detector test is inadmissible in any hearing, trial, or proceeding, whether judicial or administrative. ((Id.))

In other words, a police department may not require a lie detector test as a condition of continued employment when a cop is under investigation on suspicion of criminal activity. ((Long Beach City Employees Ass’n. v. City of Long Beach, 41 Cal.3d 937, 942, 956 (1986).)) But a police department may require a lie detector test if a cop voluntarily seeks a promotion or transfer into a few specialized divisions where the work is “unusually sensitive” and requires the “highest level of integrity.” ((LAPD v. City of Los Angeles, 35 Cal. App. 4th 1535 (1995).)) For example, a police department can require a beat cop to take a lie detector test if he wants to join the SWAT team or become a homicide detective. In that case, the cop isn’t taking the lie detector test “against his will.” ((Id.))

If a police department violates a cop’s rights under POBRA, the cop can get enough cash to buy a lifetime supply of donuts. POBRA provides that a public safety department that “malicious” denies a right or protection to a public safety officer with the “intent to injure” him “shall be liable” to him for a civil penalty of up to $25,000 for “each and every violation” and for reasonable attorney’s fees. ((Gov. Code §3309.5(e).)) Moreover, the department “shall also be liable” to him for the amount of any actual damages he has suffered. ((Id.)) But no individual may be liable for any act for which the public safety department is liable. ((Id.))

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.