American Civil Liberties Union Briefing Paper Number 4 +quot;LIE DETECTOR+quot; TESTING Du

American Civil Liberties Union                  Briefing Paper Number 4

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"LIE DETECTOR" TESTING
======================

During the past decade, more than two million private sector employees
each year were asked to take a "lie detector" test.  Based on these tests,
approximately 300,000 workers annually were branded liars and fired,
disciplined or not hired as a result.

Despite the claims of "lie detector" examiners, there is no machine that
can detect lies with any degree of accuracy.  The "lie detector" does not
measure truth-telling; it measures changes in blood pressure, breath rate
and perspiration rate, but those physiological changes can be triggered
by a wide range of emotions such as anger, sadness, embarrassment and
fear.  In addition, a variety of medical conditions such as colds,
headaches and neurological and muscular problems can distort the results. 
Indeed, as an American Medical Association expert testified during public
hearings before Congress, "the [lie detector] cannot detect lies much
better than a coin toss."

The ACLU has long favored protective legislation against indiscriminate
"lie detector" testing in the American workplace, not only because it is
unreliable, but also because it is an extreme invasion of privacy.  For
example, in order to establish "normal" physiological reactions of the
person being tested, "lie detector" examiners ask questions that purposely
embarrass, frighten and humiliate workers.  An ACLU lawsuit in l987
revealed that state employees in North Carolina were routinely asked to
answer such questions as "When was the last time you unintentionally
exposed yourself after drinking?" and "Who was the last child that got you
sexy?" Polygraphs have been used by unscrupulous employers to harass union
organizers and whistle-blowers, to coerce employees into "confessing"
infractions they did not commit, and to falsely implicate fellow
employees.

For all of the above reasons, the ACLU strongly supported passage of the
Employee Polygraph Protection Act of 1988 (EPPA).  As a result of the new
law, most employees will no longer be forced to endure a humiliating and
invasive process or have their jobs jeopardized by a machine that does
not work.

Here are the ACLU's answers to some questions frequently asked by the
public about "lie detector" testing and their rights under the new law.

===================================================
What does the Employee Polygraph Protection Act do?
===================================================

The EPPA, with some exceptions, prohibits the use of "lie detectors" by
private sector employers involved in or affecting interstate commerce.  In
the law, the term "lie detector" includes polygraphs, deceptographs, voice
stress analyzers and "any other similar device that is used...for the
purpose of rendering a diagnostic opinion regarding the honesty or
dishonesty of an individual." The ban applies to all random, and most
pre-employment, testing and will eliminate about 80 percent of the testing
done in the private sector in the past.  The EPPA does not prohibit drug
tests or written honesty tests.

Under the EPPA, employers may not require, request, suggest or cause any
employee or applicant to submit to a "lie detector" test, nor may they
discharge, discipline or discriminate against any employee or job
applicant for refusing to take such a test, for "failing" such a test, or
for filing a complaint or exercising any other rights conferred by the
legislation.  The EPPA also requires employers to post a notice informing
employees of the Act's provisions in a conspicuous place at the work
site.

=======================================================
Are there any exceptions to the ban on "lie detectors"?
=======================================================

Yes.  The EPPA permits "lie detector" testing in certain circumstances:

*  The Act permits "lie detector" testing of federal, state and local
government employees.

*  The federal government may administer "lie detector" tests to certain
government contractors engaged in national security-related activities.

*  Private security firms and companies that manufacture and distribute
pharmaceuticals are permitted to test certain job applicants.

*  Any employer may administer "lie detector" tests in connection with an
ongoing investigation of an economic loss or injury to his/her business on
these conditions: The employee under suspicion must have had access to the
property, and the employer must state in writing the basis for a
reasonable suspicion that the employee was guilty. 

Department of Labor regulations, which can be obtained from your local
Wage and Hour Division of the U. S. Department of Labor, explain in detail
what categories of employees or potential employees can be tested and
under what circumstances.

======================================================================
Does the EPPA protect those employees it permits to be tested from the 
worst abuses and misuses of the "lie detector" test?
======================================================================

Yes, even those employees the EPPA allows to be tested are afforded a wide
range of rights.  Under the Act, the results of the "lie detector" test
cannot be the _sole_ basis for an employer's action against an employee. 
Secondly, _during all phases_ of the testing, the employee is granted the
right

*  to stop the test at any time,
*  not to be asked questions in a degrading or needlessly intrusive manner,
*  not to be asked questions about beliefs, opinions or affiliations in
the areas of religion, racial matters, politics, sexual behavior, or the
lawful activities of labor organizations,
*  to decline to take the test based on evidence that a medical or 
psychological condition might cause abnormal test responses.

Furthermore, _before the test is administered_, the employee to be tested
must be given the following information in writing: 1) the date, time and
location of the test, and notice of the right to consult with legal
counsel or an employee representative before each phase of the test; 2) a
list of all questions to be asked during the test; 3) the nature and
characteristics of the tests and of the instruments involved; 4) the
design of the testing area -- whether it has a two-way mirror, a camera,
or any other device through which the test can be observed; 5) notice
that either the employee or the employer may, with the other's knowledge
and consent, make a recording of the test.

_During the test_, the examiner may not pose any questions that were not
presented in writing to the employee before the test.  And _after the
test_, before any adverse action can be taken, the employer must further
interview the employee on the basis of the test results and provide him or
her with a written copy of the test results.

==============================================
Who has access to "lie detector" test results?
==============================================

The EPPA prohibits the disclosure of test results to anyone other than the
employer who ordered the test, the employee, a court, government agency,
arbitrator or mediator pursuant to court order.  Moreover, old test
results cannot be divulged to a prospective employer.

================================================================
What effect does the EPPA have on existing state and local laws?
================================================================

More restrictive state laws or collective bargaining agreements will take
precedence over the new federal law.  For information about the law in
your state or city, contact your local ACLU office -- we are listed in the
telephone directory.  Detailed questions may be addressed to your local
Wage and Hiring Division of the U. S. Department of Labor.

==========================================
How can I assert my rights under the EPPA? 
==========================================

Your rights as an employee under the EPPA can be asserted and enforced in
two ways: through legal action brought by the Secretary of Labor, or
through a private lawsuit initiated by you as a wronged employee or
prospective employee.

The Secretary of Labor is the federal official in charge of implementing
and enforcing the EPPA.  On being notified by you of a violation of the
Act, the Secretary can bring an action in federal court for injunctive
relief and civil penalties.  If the Secretary's case is proved, the court
may order the offending employer to stop the unlawful use of "lie
detector" tests, and to reinstate you with back pay.  The court may also
fine the employer up to $10,000.  The U. S. Department of Labor has
regional offices throughout the country to which you can report an abuse,
and they are listed in the telephone directory.

The EPPA also authorizes private civil actions in state or federal court,
but such a legal action must be filed within three years of the alleged
violation.  If you win a lawsuit, the employer must reinstate or hire you
with back pay, as may have to pay f or your costs and legal fees.  If you
are contemplating bringing a lawsuit, call your local ACLU for advice.

===========================================================================
Since the EPPA does not cover government employees, what protection do they 
have from "lie detector" abuse?
===========================================================================

Government employees have not been subjected to "lie detector" tests to
the same extent as private sector employees; 98 percent of the estimated
two million "lie detector" tests given each year in the recent past were
administered in the private sector.  Government employees are less likely
to be asked to take such tests because they are protected by civil service
rules, by the constitutional prohibitions against unreasonable searches
and self-incrimination, and by state laws in some states.  These 
protections, however, are not as complete as those afforded by the 
EPPA.  The ACLU continues to lobby Congress to extend EPPA protections to 
government employees, and to represent those employees in court against "lie
detector" abuse.

===================================================================
If employers cannot use "lie detectors," what can they do to combat
employee dishonesty and theft?
===================================================================

First of all, there is no convincing evidence that widespread use of "lie
detector" tests in the workplace actually reduced dishonesty and theft. 
Those states that restricted "lie detector" testing for a number of years
do not have a higher rate of employee theft than states that allowed it.

Second, employers have a variety of alternative techniques at their
disposal that are not overly intrusive.  They can do what good managers
have been doing all along -- check references before hiring, maintain good
security and inventory controls and, above all, treat workers fairly.

A C L U
American Civil Liberties Union, 132 West 43rd Street, New York, N.Y.  10036
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