Polygraph Pitfalls

PERSONNEL AND SECURITY LOSE A VALUABLE TOOL
The "Saga of Judge Thomas" has once more brought our attention to the use of polygraph as a tool in industry.

Depending on the results of polygraph examinations to make decisions regarding truthfulness is chancy, no matter what area of banking you are considering. But using a polygraph to make a decision on hiring or for discharge of an employee is a minefield ready to blow up under your feet.

Both the employer and the employee have rights under the Employee Polygraph Protection Act.

EMPLOYEE'S RIGHTS
For the employee, the law prohibits the employer from requiring or causing any employee or prospective employee to take a polygraph (lie detector test). Nor can an employer inquire about any other polygraph tests taken by an employee when the employee was employed by someone else.

State law can prohibit any and all polygraph tests-New Jersey being one of those states. There is no permission or exception for giving a polygraph there.

The person taking the test must have a chance to review all questions to be asked, and must be informed of the right to stop the test at any time. No questions may be asked that were not submitted to the employee ahead of time.

A written notice must be provided no less than 48 hours before hand informing the examinee that he or she cannot be required to take the test as a condition for employment. And any statement made during the test may be considered evidence.

EMPLOYER'S RIGHTS
If the employer adheres to very specific guidelines regarding economic loss, access, and reasonable suspicion, it may be possible to request an employee to undergo a polygraph examination.

But if the employer does not meet the conditions required for the permitted limited use of the polygraph, it is considered to be a violation of the law.

An employer who is in violation of the EPPA may be fined a civil penalty of up to $10,000 by the Secretary of Labor. And, of course, the employee may also take action against the employer.

CONGRESS IS AGAINST IT
Since the passing of the EPPA, there has been a dramatic reduction in the use of polygraph examinations by private sector employers. And those who do use them do so at considerable legal risk. At no time should it be attempted without legal guidance.

At this point in time, "pencil and paper" testing and other written tests, including psychological ones, are not covered under federal law. The interviewer in personnel and the banking investigator both will have to refine and develop their skills, rather than depend on the polygraph.

Copyright © 1991 Bankers' Hotline. Originally appeared in Bankers' Hotline, Vol. 2, No. 9, 11/91