Employer Use of Polygraph (lie Detector) Exams

The Employee Polygraph Protection Act limitsand recorded.
employer use of lie detector tests.There are two basic types of polygraph
The Act limits the use of polygraph tests byinstruments in use today. There is the analog
most private employers. Federal, State and localinstrument (the kind where you can see the pens
government employers are exempt from themoving over the chart paper) and the more
Act. Private employers in the security businessadvanced computerized polygraph instruments.
and employers authorized to manufacture,A polygraph instrument will collect physiological
distribute or dispense controlled substances aredata from at least three systems in the human
also exempt.body. Convoluted rubber tubes placed over the
In general, an employer cannot require or evenexaminee's upper chest and abdominal area will
suggest that an employee or prospectiverecord respiratory activity. Two small metal plates
employee take a polygraph test. The onlyattached to the fingers, will record electro-dermal
exception is for investigations involving economic(sweat gland) activity. A blood pressure cuff or
loss or injury to the employer's business. Thissimilar device will record cardiovascular activity
includes theft, embezzlement, misappropriation, or(blood pressure and pulse).
an act of unlawful industrial espionage or sabotage.A polygraph examination will involve three phases.
The employer must also have a reasonableThey are the pretest interview phase, the in-test
suspicion that the employee was involved in thephase and the post-test interview phase. A typical
incident that is being investigated and thepolygraph examination will last two to three hours,
employee must have had access to the propertysometimes longer.
that is the subject of the investigation. If anIn the pretest phase, the polygraph examiner will
employer requests that an employee submit to acomplete required paperwork and talk with the
polygraph test as part of an ongoing investigation,examinee about the test. During this period, the
strict requirements must be adhered to regardingexaminer will discuss and review the questions to
notice to the employee, administration of the test,be asked, discuss the issue being tested on, and
and use of the results. The employer mustfamiliarize the examinee with the testing
provide the employee with a statement thatprocedure and the polygraph instrument.
provides the basis for requesting the examinationDuring the chart collection phase, the examiner will
that is signed by an authorized representative ofadminister the polygraph examination and collect a
the company. The employer must also providenumber of polygraph charts. Following this, the
the employee with information about his or herexaminer will analyze the charts and render an
rights and remedies under the Act.opinion as to the truthfulness of the person taking
The employee has the right to terminate the testthe test. The opinion rendered will be one of the
at any time. The employee cannot be askedfollowing: No Deception Indicated (truthful),
questions that are degrading or that ask aboutDeception Indicated (not truthful), Inconclusive
the employee's political or religious beliefs, sexual(the examiner is unable to determine truthfulness
behavior, or legal activities involving unions or laboror deception), or No Opinion (the examination had
organizations. Furthermore, the person whoto be stopped before completion or some
administers the test must be a qualified andabnormality was noted).
licensed polygraph examiner who is bonded orIn the post-test phase, the examiner will offer the
carries sufficient liability insurance. The Act alsoexaminee an opportunity to explain physiological
limits the disclosure of the results of the test andresponses in relation to one or more questions
the employer's use of the results. An employerasked during the test.
who violates the Act could be subject to a civilNOTE: It is important to state that a polygraph
penalty of up to $10,000. In addition, an employeedoes not include the analysis of physiology
or prospective employee who is affected by theassociated with the voice. Instruments that claim
employer's violation of the act can maintain ato record voice stress are not polygraphs and
private civil action for employment, reinstatement,have not been shown to have scientific support.
promotion and the payment of lost wages. ForWhy Critics Figures Vary
more information on the Employee PolygraphOne of the problems in discussing accuracy
Protection Act, consult with an attorney whofigures and the differences between the statistics
practices in the areas of Employment Law orquoted by proponents and opponents of the
Labor Law. Every polygraph examination ispolygraph technique is the way that the statistical
administered in a discreet and professional manner.figures are calculated.
We have administered thousands of polygraphCritics, who often do not understand polygraph
tests and have more than 20 years of lietesting, classify inconclusive test results as errors.
detection experience.In the real life setting, an inconclusive test result
We are highly respected and nationally acceptedsimply means that the examiner is unable to
as a polygraph expert.render a definite opinion. In such cases, a second
A detailed written report is provided for everyexamination is usually conducted at a later time.
polygraph test and if desired, compelling expertTo demonstrate how the inclusion of inconclusive
testimony is available for each examinationtest results can distort accuracy figures, consider
administered.the following example:
EPL follows federally approved standards andIf 10 polygraph examinations are administered and
utilizes state-of-the-art computerized polygraphthe examiner is correct in 7 decisions, wrong in 1
systems.and has 2 inconclusive test results, we calculate
Also available are independent assessments ofthe accuracy rate as 87.5% (8 definitive results, 7
polygraph examinations administered by otherof which were correct.)
polygraphists. This service is to ensure thatCritics of the polygraph technique would calculate
polygraph examinations are prepared, conductedthe accuracy rate in this example as 70% (10
and documented according to professionalexaminations with 7 correct decisions.)
standards. Do you have a problem where youSince those who use polygraph testing do not
need to prove the truth to someone? Maybe youconsider inconclusive test results as negative and
have a situation where you need to learn thedo not hold them against the examinee, to
truth about someone else. When the need for theconsider them as errors is clearly misleading and
truth is importantcertainly skews polygraph statistics.
Forensic Psycho physiologistErrors in Polygraph Examinations:
Polygraph Services for Attorneys,The False Positive & the False Negative
Businesses, Government Agenciesand PrivateWhile the polygraph technique is highly accurate,
Individuals.errors can occur. Polygraph errors may be caused
These are just some areas in which the use ofby the examiner's failure to properly prepare the
the polygraph has been proven valuableexaminee for the examination or by a
• Criminal Defensemisinterpreting, the physiological data collected
• Identify the Guiltyduring the polygraph examination.
• Clear the Wrongfully AccusedErrors are usually referred to as either false
• Verify Information & Statementspositives or false negatives. A false positive
• Violent Crimesoccurs when a truthful examinee is reported as
• Property Crimesbeing deceptive. A false negative occurs when a
• Sex Crimes & Allegations of Sexualdeceptive examinee is reported as truthful.
MisconductSince it is recognized that any error is damaging,
• Sexual Harassmentexaminers utilize a variety of procedures to
• Narcotic Investigationsidentify the presence of factors, which may
• Hidden Assetscause false responses, and to insure an unbiased
• Domestic Disputesreview of the polygraph records. These include:
• Infidelity Issues• An assessment of the examinee's
• Insurance Fraudemotional state.
• Allegations of Child Abuse• Medical information about the
• Civil Rights Mattersexaminee's physical condition.
• Allegations of Official Misconduct• Specialized tests to identify the overly
• Allegations of Public Corruptionresponsive examinee and to calm the overly
• Equal Employment Opportunity Mattersnervous.
• White Collar Crimes• Utilizing only validated testing formats
• Missing Personsand protocol.
• Law Enforcement, Government &• Factual analysis of the case
Security Screeninginformation.
• Any Time the Need for the Truth is• A thorough pretest interview and a
Importantdetailed review of the questions.
NOTE: For suspected employee thefts, see the• Quality control reviews.
requirements of the Employee PolygraphWho Gets Results?
Protection Act (EPPA) of 1988 - click link belowAccording to various state licensing laws and the
Link - EMPLOYEE POLYGRAPH PROTECTIONAmerican Polygraph Association's Standards and
ACTPrinciples of Practice, polygraph results can be
BASIC QUESTIONS ABOUT POLYGRAPHreleased only to authorized persons. Generally, the
ANSWEREDindividuals who can receive test results are the
Polygraph Examiner Credentialsexaminee and anyone specifically designated in
Before hiring a polygraph examiner, always findwriting by the examinee. Such as the person,
out about their credentials and experience. Askfirm, corporation or governmental agency, which
how long they have been a polygraph examiner. -requested the examination and others as, may be
Ask how many polygraph examinations they haverequired by due process of law.
administered. - Find out how many professionalAdmissibility in Court
polygraph associations they belong to. - Ask ifIt is largely the public's general opinion that
they are qualified as an expert polygraph witness.polygraph testing results are not allowed in court.
- Find out how often they attend continuingThe fact is that polygraph results are admissible in
education courses and find out if they aremost courts across the country. The Supreme
licensed. If they are experienced and trulyCourt has yet to rule on the issue of admissibility
professional, they will want you to know aboutso it has been up to individual jurisdictions to allow
their qualifications and will gladly provide you withor disallow them. There are some jurisdictions
this information on their web site or in writing. Ifthat have absolute bans on admitting polygraph
this information is not readily available - Ask! Theresults, but most will allow them.
last thing you need is to spend your money on anWhy is this public opinion so widespread? The
inaccurate polygraph test. Test results that aresimple fact is that both the plaintiff and the
inaccurate can cost you a lot more than yourdefendant have to agree on having the results of
money. It can cost you your job, yourthe test are admissible prior to the examination
relationship, your reputation, or in criminalbeing conducted.
matters.... harm your defense! Always ask forSince the results of the test are likely to benefit
examiner credentials and experiences. DJIone party and not the other, the likelihood that
What is a Polygraph?both parties will agree to admissibility before
The term "polygraph" means "many writings." Theknowing how it will affect their case is small.
name refers to the manner in which selectedBecause of this, results of polygraph testing are
physiological activities are simultaneously collectedrarely admitted as evidence.