Rhodes discusses laws covering polygraphs at work

COLUMBIA, SC – It’s the standard stuff of TV dramas. An employee suspected of embezzlement takes a polygraph, providing the crucial evidence needed to wrap everything up in less than an hour.

The real world is more complicated. When it comes to polygraphs at work, there are strict laws that cover when they can be requested and how they must be administered. Employment law attorney Janet Rhodes gave an overview recently at a continuing legal education program titled, “How to Spot a Liar: The Use of Polygraphs in Employment Law Matters.” Her presentation was part of the South Carolina Employment Law Division of the SC Bar’s Annual Conference.

The main federal law covering polygraphs at work, the Employee Polygraph Protection Act, has been in force since 1988. In one way, it’s very simple. Employers can’t require tests. There are exceptions, though, that make it tricky for employers trying to get to the truth and for workers facing accusations.

Lie detector technology

The earliest record of using a “lie detector” was in ancient Asia. Suspects chewed dry rice during questioning and then spit out the grain. Moist rice was a sign of truthfulness. That’s because fear often causes dry mouth.

Systems today go beyond even the classic polygraph exam that measures the body’s responses to questioning. Modern technology can include voice analysis and eye tracking. The law considers any of those systems a polygraph.

How accurate are polygraphs? Some experts say 85 to 90 percent. Critics contend that they’re really stress detectors, not lie detectors. On the flip side, someone who can stay calm could beat the test, some scientists believe.

Polygraphs at work

The federal Employee Polygraph Protection Act bans most private companies from requiring job applicants to take lie-detector tests. Neither can they make existing employees take polygraph exams.

The exceptions are for security services, such as companies that operate armored vehicles, alarm systems or employ guards. Companies that make, sell or distribute pharmaceuticals also can use polygraphs. Also, the law doesn’t apply to federal, state or local government workers.

Otherwise, companies can’t even suggest that a lie-detector test is mandatory. The same hefty fine applies for suggesting that a test is required as for requiring it.

A company can’t retaliate if an employee refuses to take an exam. It can’t disclose any information it learns during an exam either. It can’t use information from a polygraph as the sole reason for firing someone.

Federal law does allow testing if a company reasonably suspects an incident such as theft or embezzlement, but a “reasonable suspicion” is more than a hunch. A company has to have supporting facts. The fact that a bank manager had access to a vault is not enough.

Rhodes, an experienced employment lawyer at Burnette Shutt & McDaniel, said it’s best to consult an attorney, whether you’re a company running an investigation or a worker facing accusations. Businesses must make sure they proceed properly, while workers need to ensure that their rights are protected.

With offices in Columbia’s historic Vista District, Burnette Shutt & McDaniel includes two South Carolina employment law specialists. The firm also represents clients in environmental issues and government law. Additional, the firm assists with privacy and data security.