Legal Trends and the Lie Detector
| Publication year | 1988 |
| Pages | 2147 |
| Citation | Vol. 17 No. 11 Pg. 2147 |
1988, November, Pg. 2147. Legal Trends and the Lie Detector
On June 27, 1988, President Reagan signed into law the Employee Polygraph Protection Act of 1988 ("Act").(fn1) The Act will prevent most private employers from using lie detector tests to screen job applicants or to test current employees unless the employer reasonably suspects that the employee was involved in a workplace theft or other incident causing economic loss to the employer. As enacted, the Act specifically exempts federal, state and local government employers.(fn2) This law takes effect on December 27, 1988, and provides for the following:
1) It permits private security firms and drug companies to continue to administer polygraph tests to job applicants and employees under certain conditions.
2) It prohibits employers from disciplining, discharging, discriminating against or denying employment and promotion to prospective or current workers solely on the basis of polygraph test results.
3) It authorizes civil lawsuits by the Secretary of Labor, employees and job applicants and gives federal courts the power to award back pay and benefits, employment and reinstatement, as well as civil fines up to $10,000 against employers.
4) It sets forth detailed procedures that an employer must follow during any legally permitted lie detector test.
5) It prohibits employees and job applicants from waiving their rights under the Act and provides detailed qualifications for any individual examiner who conducts a lie detector test.
6) It does not pre-empt more stringent or more restrictive state or local laws or collective bargaining agreements.
7) It stipulates that the Secretary of Labor has ninety days from the date of enactment to promulgate such rules and regulations as may be necessary or appropriate to carry out the provisions of the Act.
Because of this new legislation and the national trend toward polygraph-use regulation that it signals, it is important that attorneys have an understanding of the polygraph process and how the courts are dealing with the issue of lie detectors in the workplace.
A polygraph machine measures and records changes in the body's physical reactions. The machine specifically measures cardiovascular values (blood pressure, heart value and pulse), respiratory values and galvanic skin response (sweat production). The polygraph examiner (or polygraphist) evaluates the subject's physiological responses to a set of carefully structured questions and makes a decision as to whether the subject is answering truthfully.(fn3)
The polygraphist's decision is based on his or her analysis of the subject's responses to two types of questions: "relevant" and "control." Relevant questions are those dealing with the topic under investigation (e.g., "Did you steal the merchandise?"). Control questions are irrelevant to the topic under investigation (e.g., "Have you ever told a lie?"). The polygraphist may even instruct the subject deliberately to answer falsely to certain control questions (e.g., "Are you wearing black shoes?").
The theory underlying the polygraph test is that stress creates changes in the physiological parameters measured by the machine and that this stress is believed to be caused by fear of detection of deception. Presumably, truthful subjects will be more concerned (and will thus experience more...
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