State Laws on Polygraphs and Lie Detector Tests

Federal law and the laws of most states prohibit employers from requiring lie detector testing, with very limited exceptions.

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For decades, lie detectors, or polygraph tests, now more euphemistically referred to as “psychological stress evaluator tests,” which purport to measure the truthfulness of a person’s statements by tracking bodily functions such as blood pressure and perspiration, were routinely used on employees and job applicants.

Employers could—and often did—ask employees and applicants questions about extremely private matters, such as sexual preferences, toilet habits, and family finances, while a machine to which they were hooked passed judgment on the truthfulness of the answers. Push the machine’s needle too far by reacting to an offensive question and you could be labeled a liar and denied employment.

The Employee Polygraph Protection Act

The federal Employee Polygraph Protection Act, passed in 1988, virtually outlawed using lie detectors in connection with employment. That law covers all private employers in interstate commerce, which includes just about every private company that uses a computer, the U.S. mail, or a telephone system to send messages to someone in another state.

Under the Act, it is illegal for all private companies to:

  • require, request, suggest, or cause any employee or job applicant to submit to a lie detector test
  • use, accept, refer to, or inquire about the results of any lie detector test conducted on an employee or job applicant, or
  • dismiss, discipline, discriminate against, or even threaten to take action against any employee or job applicant who refuses to take a lie detector test.

The law also prohibits employers from discriminating against or firing those who claim its protections.

While government employees are not protected by this law, they are generally protected from lie detector tests by civil service rules.

When Lie Detector Tests Can Be Used

The Employee Polygraph Protection Act allows polygraph tests to be used in connection with jobs in security and handling drugs or in investigating a specific theft or other suspected crime. However, before you can be required to take such a test as part of an investigation of an employment-related crime, you must be given a written notice, at least 48 hours before the test, stating that you are a suspect. And there must be a provable, reasonable suspicion that you were involved in the theft or other conduct triggering the investigation.

The Act does not apply to employees of federal, state, or local government, nor to certain jobs that handle sensitive work relating to national defense.

Limitations on the Tests

In addition to the strictures on when and to whom the tests may be given, there are a number of restrictions on their format. Before a lie detector test can be administered, your employer must read to you and ask you to sign a statement that includes:

  • a list of topics you cannot be asked about, including questions on religious beliefs, sexual preference, racial matters, lawful activities of labor organizations, and political affiliation
  • information on your right to refuse to take the test
  • the fact that you cannot be required to take the test as a condition of employment
  • an explanation of how the test results can be used, and
  • an explanation of your legal rights if the test is not given in keeping with the law.

While the test is being administered, you have the right:

  • to stop it at any time, and
  • to be asked questions in a way that is not “degrading or needlessly intrusive.”

When the test is said and done, results can be disclosed only to the employer who ordered the test, the employee who was tested, a court or government agency, or an arbitrator or mediator if there is a related court order. The law specifically prohibits prospective employers from getting access to old test results.

How to Take Action

The Employee Polygraph Protection Act is enforced by the U.S. Department of Labor. If you have questions about whether the Act applies to your job or if you suspect that you have been subjected to illegal polygraph testing, call the office of the U.S. Labor Department’s Wage and Hour Division nearest you.

There is no official form for filing a complaint. If, after discussing your situation with a Wage and Hour Division investigator, you decide to file a complaint, do so as soon as possible by writing a letter addressed to your local Wage and Hour Division office. Include such details as the name and address of the employer, when the incident occurred, and the address and telephone number where an investigator can reach you. And keep a copy of your letter for your records.

If the Labor Department finds that your rights under the Act were violated, it can fine the offending employer up to $10,000 and issue an injunction ordering the employer to reinstate you to your job, promote you, compensate you for back wages, hire you, or take other logical action to correct the violation.

If the Labor Department’s action on your complaint does not satisfy you, you can file a lawsuit against the employer to obtain whatever compensation or other remedy would be appropriate. Move quickly, because the lawsuit must be filed within three years. You will probably need to hire an attorney to help you if you decide to file a lawsuit under this Act. But the law allows the court to grant you attorneys’ fees and other costs if you win.

State Laws on Lie Detector Tests

Some states have laws prohibiting or restricting employers from using lie detectors in connection with employment, but most have been made obsolete by the federal antipolygraph statute. Some states go farther and prohibit employers from even suggesting such a test.

In addition, state coverage may be broader; while the federal law does not apply to state and local government employees, many of the state statutes do.

Note that the laws in several states provide that an employee who volunteers to take a lie detector test may be given one. But such laws have safeguards, requiring that the tests be administered under approved and supervised conditions and that employees be clearly informed about how and why test results may be used.

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CAUTION

Additional laws may apply. If the chart below indicates that your state has no statute, this means there is no law that specifically addresses the issue. However, there may be a state administrative regulation or local ordinance that does control polygraph tests. Call your state labor department for more information. (See the appendix for contact details.)

State Employee Polygraph Examination Laws

Alaska

Alaska Stat. § 23.10.037

Employers covered: All

What’s prohibited: Employer may not suggest, request, or require that employee or applicant take a lie detector test.

California

Cal. Lab. Code § 432.2

Employers covered: All

What’s prohibited: Employer may not demand or require that employee or applicant take a lie detector test.

What’s allowed: Employer may request a test, if applicant is advised in writing of legal right to refuse to take it.

Connecticut

Conn. Gen. Stat. Ann. § 31-51g

Employers covered: All, including employment agencies.

What’s prohibited: Employer may not request or require that employee or applicant take a lie detector test.

Delaware

Del. Code Ann. tit. 19, § 704

Employers covered: All

What’s prohibited: Employer may not suggest, request, or require that employee or applicant take a lie detector test in order to obtain or continue employment.

District of Columbia

D.C. Code Ann. §§ 32-901 to 32-903

Employers covered: All

What’s prohibited: Employer may not administer, have administered, use, or accept the results of any polygraph examination.

Hawaii

Haw. Rev. Stat. § 378-26.5

Employers covered: All

What’s prohibited: Employer may not require employee or applicant to take lie detector test.

What’s allowed: Employer may request test if current or prospective employee is told, orally and in writing, that refusing to take test will not result in being fired or hurt chances of getting job.

Idaho

Idaho Code § 44-903

Employers covered: All

What’s prohibited: Employer may not require an employee or applicant to take a lie detector test.

Illinois

225 Ill. Comp. Stat. § 430/14.1

Employers covered: All

What’s prohibited: Unless directly related to employment, examination may not include questions about:

• political, religious, or labor-related beliefs, affiliations, or lawful activities

• beliefs or opinions on racial matters, or

• sexual preferences or activity.

Iowa

Iowa Code § 730.4

Employers covered: All

What’s prohibited: Employer may not request, require, administer, or attempt or threaten to administer a lie detector test; may not request or require that employee or applicant sign waiver of any action prohibited by this law.

Maine

Me. Rev. Stat. Ann. tit. 32, § 7364

Employers covered: All

What’s prohibited: Employer may not request, require, suggest, or administer a lie detector test.

What’s allowed: Employee may voluntarily request a test if these conditions are met:

• results cannot be used against employee

• employer must give employee a copy of the law when employee requests test, and

• test must be recorded or employee’s witness must be present during the test, or both (at employee's request).

Maryland

Md. Code Ann. [Lab. & Empl.] § 3-702

Employers covered: All

What’s prohibited: Employer may not require or demand that employee or applicant take a lie detector test.

What’s required: All employment applications must include specified notice that no person can be required to take a lie detector test as a condition of obtaining or continuing employment; must include space for applicant to sign and acknowledge notice.

Massachusetts

Mass. Gen. Laws ch. 149, § 19B

Employers covered: All

What’s prohibited: Employer may not request, require, or administer a lie detector test.

What’s required: All employment applications must include specified notice that it is unlawful to require a lie detector test as a condition of obtaining or continuing employment.

Michigan

Mich. Comp. Laws §§ 37.203, 338.1719

Employers covered: All

What’s prohibited: Employer may not request, require, administer, or attempt or threaten to administer a lie detector test; may not request or require that employee or applicant sign waiver of any action prohibited by this law.

What’s allowed: Employee may voluntarily request a test if these conditions are met:

• before taking test employee is given copy of the law

• employee is given copies of test results and reports

• no questions asked about sexual practices; marital relationship; or political, religious, or labor or union affiliations, unless questions are relevant to areas under examination, and

• examiner informs employee:

square of all questions that will be asked

square of right to accept, refuse, or stop test at any time

square that employee is not required to answer questions or give information, and

square that information volunteered could be used against employee or made available to employer, unless otherwise agreed to in writing.

Minnesota

Minn. Stat. Ann. §§ 181.75, 181.76

Employers covered: All

What’s prohibited: Employer may not directly or indirectly solicit or require an applicant or employee to take a lie detector test.

What’s allowed: Employee may request a test, but only if employer informs employee that test is voluntary. Results of voluntary test may be given only to those authorized by employee.

Montana

Mont. Code Ann. § 39-2-304

What’s prohibited: Employer may not require an employee or applicant to take a lie detector test.

Nebraska

Neb. Rev. Stat. § 81-1932

Employers covered: All

What’s prohibited: Employer may not require an employee or applicant to take a lie detector test.

What’s allowed: Employer may request that test be taken, but only if these conditions are met:

• no questions asked about sexual practices; marital relationship; or political, religious, or labor or union affiliations

• examinee is given written and oral notice that test is voluntary and may be discontinued at any time

• examinee signs form stating that test is being taken voluntarily

• prospective employees are asked only job-related questions and are not singled out for testing in a discriminatory manner

• employee requested to take test only in connection with a specific investigation

• results of test are not the sole reason for terminating employment, and

• all questions and responses are kept on file by the employer for at least one year.

Nevada

Nev. Rev. Stat. Ann. §§ 613.480 to 613.510

Employers covered: All

Exceptions: Manufacturers or distributors of controlled substances; providers or designers of security systems and other security personnel; ongoing investigation.

What’s prohibited: Employer may not directly or indirectly require, request, suggest, or cause a lie detector test to be taken; may not use, accept, refer to, or ask about the results of any test. May not take adverse employment action solely on the basis of test results or a refusal to take test.

What’s allowed: Nevada law allows testing in the same limited circumstances as the federal EPPA, with similar rules and restrictions on when and how the test is given.

New Jersey

N.J. Stat. Ann. § 2C:40A-1

Employers covered: All

Exceptions: Employers that deal with controlled, dangerous substances.

What’s prohibited: Employer may not influence, request, or require applicant or employee to take a lie detector test.

What’s allowed: Employers who are allowed to test must observe these rules:

• job must require direct access to controlled substance

• test limited to preceding 5 years

• questions must be work related or pertain to improper handling, use, or illegal sale of legally distributed controlled dangerous substances

• test taker has right to legal counsel

• written copy of test results must be given to test taker upon request

• test information may not be released to any other employer or person, and

• employee or prospective employee must be informed of right to present results of a second independently administered test prior to any personnel decision being made.

New York

N.Y. Lab. Law §§ 733 to 739

Employers covered: All

What’s prohibited: Employer may not require, request, suggest, permit, or use results of a lie detector test.

Oregon

Or. Rev. Stat. Ann. §§ 659.840, 659A.300

Employers covered: All

What’s prohibited: Employer may not require an employee or applicant to take a lie detector test.

Pennsylvania

18 Pa. Cons. Stat. Ann. § 7321

Employers covered: All

Exceptions: Employers with positions that have access to narcotics or dangerous drugs.

What’s prohibited: Employer may not require an employee or applicant to take a lie detector test.

Rhode Island

R.I. Gen. Laws §§ 28-6.1-1 to 28-6.1-4

Employers covered: All

What’s prohibited: Employer may not request, require, subject, nor directly or indirectly cause an employee or applicant to take a lie detector test.

Tennessee

Tenn. Code Ann. §§ 62-27-123, 62-27-128

Employers covered: All

What’s prohibited: Employer may not take any personnel action based solely upon the results of a polygraph examination. No questions may be asked about:

• religious, political, or labor-related beliefs, affiliations, or lawful activities

• beliefs or opinions about racial matters

• sexual preferences or activities

• disabilities covered by the Americans with Disabilities Act, or

• activities that occurred more than five years before the examination, except for felony convictions and violations of the state drug control act.

(Exception: Examination is part of an investigation of illegal activity in one of the above subject areas.)

What’s required: Prospective examinee must be told if examiner is a law enforcement or court official and informed that any illegal activity disclosed may be used against examinee. Must receive and sign a written notice of rights including:

• right to refuse to take the test or to answer any question

• right to terminate examination at any time

• right to request an audio recording of examination and pretest interview, and

• right to request examination results within 30 days of taking it.

Vermont

Vt. Stat. Ann. tit. 21, §§ 494 to 494e

Employers covered: All

Exceptions: Employers whose primary business is sale of precious metals, gems, or jewelry; whose business includes manufacture or sale of regulated drugs and applicant’s position requires contact with drugs; employers authorized by federal law to require a test.

What’s prohibited: Employer may not request, require, administer, or attempt or threaten to administer a lie detector test. May not request or require that employee or applicant sign waiver of any action prohibited by state law. May not discriminate against employee who files a complaint of violation of laws.

When testing is allowed, no questions may be asked about:

• political, religious, or labor union affiliations

• sexual practices, social habits, or marital relationship (unless clearly related to job performance), or

• any matters unrelated to job performance.

What’s required: Prior to taking test examinee must receive a copy of state laws and a copy of all questions to be asked. Must be told that any information disclosed could be used against examinee or made available to employer, unless there is a signed written agreement to the contrary. Examinee must be informed of rights including:

• right to accept or refuse to take examination

• right to refuse to answer any questions or give any information

• right to stop examination at any time, and

• right to a copy of examination results and of any reports given to employer.

Virginia

Va. Code Ann. § 40.1-51.4:3

Employers covered: All

What’s prohibited: Employer may not require an applicant to answer questions about sexual activities in a polygraph test, unless the sexual activity resulted in a conviction for violation of state law.

What’s required: Any record of examination results must be destroyed or maintained on a confidential basis, open to inspection only upon agreement of the employee.

Washington

Wash. Rev. Code Ann. § 49.44.120

Employers covered: All

Exceptions: Applicant or employee who manufactures, distributes, or dispenses controlled substances, or who works in a sensitive position directly involving national security.

What’s prohibited: Employer may not require, directly or indirectly, that an employee or applicant take a lie detector test.

West Virginia

W.Va. Code §§ 21-5-5a to 21-5-5d

Employers covered: All

Exceptions: Employees or applicants with direct access to controlled substances.

What’s prohibited: Employer may not require or request, directly or indirectly, that an employee or applicant take a lie detector test; may not knowingly use the results of a lie detector test.

Wisconsin

Wis. Stat. Ann. § 111.37

Employers covered: All

Exceptions: Manufacturers or distributors of controlled substances; providers or designers of security systems and other security personnel; ongoing investigation.

What’s prohibited: Employer may not directly or indirectly require, request, suggest, or cause an applicant or employee to take a lie detector test; may not use, accept, refer to, or inquire about the results of a test. May not take adverse employment action solely on the basis of test results or a refusal to take test. May not discriminate or retaliate against employee who files a complaint of violation of laws.

What’s allowed: Wisconsin law allows testing in the same limited circumstances as the federal EPPA, with similar rules and restrictions on when and how the test is given.

by: , J.D.

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