John Roska: Employer cannot require polygraph test

Q: Can my employer make me take a lie detector test? What would happen if I refuse?

A: No. Employers can't require anyone to take a polygraph test. They can ask you to, but you can refuse.

The only time an employer can even ask is when they're investigating some economic loss, and then they must specifically suspect you're the cause.

If you decline a request to be tested, you can't be fired. Your employer would have to find other ways to determine if you're involved in the loss.

A federal law provides the protection. Since 1988, the Employee Polygraph Protection Act has generally prohibited any use of polygraph tests by private employers in hiring and firing people. (It doesn't protect federal, state and local government employees.)

The EPPA permits consensual polygraph testing of employees only as part of an "ongoing investigation involving economic loss or injury to the employer's business."

Then, any employee the employer wants to test must have had access to the area or items involved, and the employer must have a reasonable suspicion that the particular employee is implicated. The law is very clear that it's illegal to use tests as a general "fishing expedition."

The regulations give examples of what justifies testing. Theft from employee lockers does not, nor does a drug sale on employer property, since neither situation involves any economic loss to the employer.

Routine inventory or cash register shortages aren't specific enough losses to be grounds for testing. And losses caused by unintentional conduct, like accidents, can't be the reason for testing.

(About short tills: The Illinois Wage Payment Act says that even if a cash register shortage is your fault, the boss can't deduct anything from your pay without your written consent. But you can be fired, so refusing to repay may not be an attractive option.)

If your employer wants to do polygraph testing for something that fits into the "economic loss investigation" exception, that just means they can ask you to take a test. You can refuse, and can't be fired. If you quit, your employer can't say anything about your refusal, or about your quitting, on future job references.

Your employer's request for a lie detector test must be in writing, at least 48 hours before the test. That request must state why the employer suspects you, and notify you of your "examinee rights." Those rights include the right to refuse the test, and the right to review all questions in advance.

Tests must be at least 90 minutes long, and the results, including copies of the questions and each "charted response," must be provided to tested employees.

Any admissions you make during a test can be used against you. But test results alone aren't enough to fire you. The law says your employer must have "additional supporting evidence" — on top of the test results — for any kind of discipline.

A separate Illinois law says employment-related polygraph tests can't ask about your beliefs or opinions about religion, race, politics, unions or about sexual preferences or activity.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

Sections (1):Living
Topics (1):Employment

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