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Use of the polygraph (lie detector)

Significant restrictions have been placed on the use of the polygraph, also commonly referred to as a lie detector. The United States Congress passed the Employee Polygraph Protection Act in the late 1980s, which largely prohibited requiring or requesting employees or job applicants to take a polygraph test. Investigators in the private sector should also avoid asking if an employee would be willing to take a polygraph examination during the behavioral interview as this might violate the Act. In addition, there were significant prohibitions regarding the discharging or disciplining employees or prospective employees for refusing to take a test or for exercising their right not to take a polygraph examination under the rights afforded under the Act.

Prior to the Act being passed by the United States Congress, numerous states and some cities had instituted legislation relating to polygraph testing and or the licensing of polygraph examiners. Legislation varies significantly from state to state in both, licensing of examiners and the rights afforded the employee or prospective employee. Many states also prohibit police departments from testing the victims of a crime. This is especially true when the subject was a victim of the sexual assault.

There are a number of exemptions to the Employee Polygraph Protection Act, as well as state laws. In general, federal, state and local governments are not affected by the law. The law also does not apply to polygraph examinations administered by the federal government to private individuals engaged in national security related activities. The Act permits polygraph testing to be administered in the private the sector subject to certain restrictions. These restrictions provide that the employer must set forth the circumstances and reasons why an employee is suspected of involvement in a workplace incident that resulted in an “economic loss” to the employer. These reasons must be provided in writing to the employee along with the questions to be used in the examination 48 hours prior to any scheduled polygraph examination. The employee has the right to refuse to submit to a polygraph examination or to discontinue a test being conducted. The Act also restricts the disclosure of test results to unauthorized persons and prohibits employment decisions based on the polygraph results alone.

The Employee Polygraph Protection Act permits using polygraph examinations with certain job classifications in the private sector. Some employers are permitted to use pre-employment polygraph testing as part of their selection process. These private sector employers are restricted to armored car companies, nuclear facilities, certain alarm and guard companies, and pharmaceutical manufacturers, distributors and dispensers.

The enforcement of the Employee Polygraph Protection Act falls under the auspices of the U.S. Department of Labor. The U.S. Department of Labor can assess civil penalties up to ten thousand dollars against violators of the Act. Employees or job applicants who have their rights under the Act violated may also bring their own court actions in addition to any fines assessed by the U.S. Department of Labor.

Private sector investigators, prior to using the polygraph as part of an ongoing investigation, should ascertain any specific federal, state or local prohibitions against its use. The investigator should also determine that the polygraph examiner has the necessary educational and training qualifications to administer the test. These qualifications might include completion of a certified testing program, state licensing, insurance, and membership in a state association or membership in the American Polygraph Association. The polygraph can be an effective tool in eliminating suspects from an investigation or focusing the investigation toward a specific person, however it must be used judiciously.

The final reply to the suspect is the best because it gives the suspect no additional information, while offering a reason for not revealing the evidence that benefits the suspect. The investigator can establish the suspect's truthfulness and put him in a positive light by showing his cooperation and by inference that other things the suspect might say are true as well.




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