Lie detector tests include polygraph testing as well as other tests to evaluate psychological or voice stress. In addition to the Employee Polygraph Protection Act (EPPA), California employees are also protected by California Labor Code Section 432.2 as well as some other laws.
Employers may want to run lie detector tests to evaluate the honesty of prospective applicants or current employees. However, prior to initiating a lie detector test, employers should carefully review all applicable laws to ensure that employees privacy rights are not violated.
What Is California Policy on Using Lie Detectors?
- California Private Employment Sector – In California, a private employer cannot require a lie detector test from current employees or prospective applicants. However, the bar on lie detector testing does not apply to federal, state, or local government employers.
- California Public Employment Sector – Other California protections apply to public safety officers who cannot be forced to take a lie detector test. Public sector employer may request public safety officer to go through the lie detector test. However, retaliation against public safety officers for their refusal to take lie detector test is strictly forbidden. The fact of refusal cannot be noted in investigation or be used as evidence against public safety officers.
What Is an Employer Required to Do Under California Law?
An employer may request for an employee to take a lie detector test. However, an employer must advise the employee in writing that there is no requirement to take a lie detector test.
How Does California Law Differs from the EPPA?
While EPPA makes some exceptions and permits lie detector testing for current employees internally investigated for thefts at the workplace, California law forbids any such demand from a private employer.
Alternate Methods for Eliciting Information from Employees
As lie detector testing has become unavailable, many employers try using other tests or for eliciting information from current of prospective employers. Caution is warranted as these methods may subject employers to liability. For example:
- Use of pre-employment investigators to conduct "security interviews" may result in invasion of privacy.
- Psychological testing may violate disability discrimination laws if not designed with care.
- Pre-employment physical examinations should be made under limited circumstances and in compliance with California Fair Employment and Housing Act as well as the American with Disabilities Act (ADA).
- Under California law, an employer may not condition employment on requiring HIV testing. Results of HIV testing are to be kept in confidence.
When to Seek an Attorney’s Help
A qualified employment attorney may help employees whose rights were violated under California law and/or the EPPA. An attorney may determine that your employer has violated other state or federal laws related to privacy protection or disability discrimination. Further, a qualified California attorney may advise employers on how to set up standard practices for proper employee selection.