Polygraph Testing of Employees In Private Industry

Congressional Research Service The Library of Congress Washington, D.C. 20540 POLYGRAPH TESTING OF EMPLOYEES IN PRIVATE INDUSTRY Britt D. Liddicoat Legislative Research Assistant American Law Division August 7, 1985 CONTENTS ABSTRACT ................................................................ i ................................................... 2 THE ISSUE OF PRIVACY AND POLYGRAPH EXAMS ................................ 3 QUESTIONS OF POLYGRAPH VALIDITY ..................................... 4 THE EMPLOYMENT AT WILL DOCTRINE ......................................... 6 THE POLYGRAPH PROCESS 0 . .................................. 13 CURRENT LEGISLATION ........................................ 14 APPENDIX: SUMMARY OF STATE STATUTES APPLYING TO POLYGRAPH USAGE I N THE .. 16 PRIVATE SECTOR NLRB DECISIONS REGARDING THE POLYGRAPH BIBLIOGRAPHY ............................................................ 19 ABSTRACT An i n c r e a s i n g number of employers are u s i n g polygraphy o r ' l i e det e c t o r ' tests i n t h e workplace. These tests a r e g i v e n t o p r e s c r e e n job a p p l i c a n t s a s w e l l a s t o check on s u s p e c t e d employees. This report dis- c u s s e s t h e main l e g a l q u e s t i o n s r e g a r d i n g polygraph use: whether i t i s a n i n v a s i o n o f p r i v a c y and c r i t i c i s m s r e g a r d i n g i t s r e l i a b i l i t y . The polygraph p r o c e s s i s d e s c r i b e d and pending f e d e r a l l e g i s l a t i o n i s d i s cussed. included. A summary o f p e r t i n e n t s t a t e s t a t u t e s and a b i b l i o g r a p h y a r e POLYGRAPH TESTING OF EMPLOYEES I N PFUVATE INDUSTRY A LEGAL OVERVIEW INTRODUCTION I n an e f f o r t t o c u r t a i l t h e l o s s e s r e s u l t i n g from employee t h e f t s e s t i mated by t h e Commerce Department a t $40 t o $50 b i l l i o n a n n u a l l y , employers have i n c r e a s e d t h e i r use of polygraph t e s t i n g i n t h e v o r k p l a c e . -L / The American Polygraph A s s o c i a t i o n , a n o n p r o f i t o r g a n i z a t i o n based i n Dearborn, Michigan, claims t h a t a b o u t 30 p e r c e n t of t h e F o r t u n e 500 companies u s e t h e polygraph. The Nev York C i v i l L i b e r t i e s Union r e p o r t s t h a t h a l f a m i l l i o n employees and job a p p l i c a n t s a r e r e q u i r e d t o t a k e a polygraph exam a n n u a l l y . 31 The in- c r e a s i n g l y widespread use of t h i s method t o d e t e c t v e r i t a b l e n e s s h a s come t o be viewed a s a r i g h t by employers t o p r o t e c t t h e i r p r o p e r t y and a s a prer e q u i s i t e by employees who wish t o o b t a i n o r m a i n t a i n t h e i r jobs. Two c r i t i c i s m s o f t e n made of t h e polygraph a r e t h a t i t i n t r u d e s i n t o workers' p r i v a c y and t h a t i t is of q u e s t i o n a b l e r e l i a b i l i t y . The polygraph i s becoming a common f e a t u r e .of job a p p l i c a n t s c r e e n i n g , i n v e s t i g a t i o n s i n t o f i n a n c i a l i r r e g u l a r i t i e s and random s p o t checks on employees. But because p o l y g r a p h ' s p o p u l a r i t y may be t h r e a t e n i n g t o w o r k e r s , t h i r t y - t w o s t a t e s have e n a c t e d l e g i s l a t i o n r e s t r i c t i n g employer u s e of polygraph t e s t s g i v e n t o employees. 11 " U s e of Honesty T e s t s Raises P r i v a c y I s s u e , " 68 A.B.A.J. 1982): -21 N.Y. Times, Feb. 13, 1983. 3/ - N.Y. Times, Feb. 1 3 , 1983. 671 ( J u n e -2 / This report will describe the process of polygraph testing, the criticisms and merits of its usage, and its use in labor arbitration. cluded is a discussion of pending federal legislation. Also in- In the Appendix is a list of pertinent state statutes concerning the use of the polygraph in employment. This is followed by a bibliography. THE POLYGRAPHY PROCESS In theory lying produces stress because the subject being tested -41 has a fear of detection. His stress can be measured by a polygraph which monitors a person's physiological responses to selected questions. For optimal results, the exam should be given in a nonthreatening environment free from distraction. Before the interview a subject familiarizes himself with the questions. This prevents deceptive test findings resulting from nervous- ness and anxiety over test questions. Next, the examinee is strapped to the machine. measured by two tubes placed around the torso. Respiration rate is Change in blood pressure and pulse is measured by a rubber cuff secured around the arm. Lastly, galvanic skin responses, or perspiration activity is recorded through -5 1 small electrodes placed on two fingers. Usually, three types of test questions are asked: and irrelevant. The control and irrelevant questions determine respectively deceptive and truthful response patterns. -- control, relevant A typical control question would -- -4 / 'Wiretapping the Mind," 21 San Diego L. Rev. 297 (1984). -5 / "Polygraph in the Workplaces," 18 U. Rich. L. Rev. 50 (1983). be, "Have you ever stolen anything?' The relevant questions pertain speci- fically to the matter under investigation. The worker's response to this type -6/ of question is most indicative of deception. THE ISSUE OF PRIVACY AND POLYGRAPH EXAMS A major criticism of lie detector tests given in the workplace is that they may intrude into employees' personal lives. The worker's privacy may be chiefly invaded because of his inability during the exam to refrain from divulging information about himself. -7/ The examiner can ask various questions and the worker's physiological responses continuously give answers. Furthermore, in order to explain a particularly extreme reaction to a question the employee might have to confess some information wholly unrelated to the matter at hand but of very personal significance to him. In addition, intrusion may occur because through a polygraph test, an employer can acquire information about the applicant or employee which could -8/ not be obtained through other background checks or personality tests. This data, possibly incorrect, kept in the employee's file could preclude future employers from inquiring into the individual's character and could even prevent employment opportunities. However, polygraph testing proves to -91 be a cheaper interview method than an extensive background search. -6 / "Wiretapping the Mind," 21 San Diego L. Rev. -7 / "Wiretapping the Mind," 21 San Diego L. Rev. -8/ "Employment Polygraph Testing," 15 U.C.D. L. -9/ "Employment Polygraph Testing," 15 U.C.D. L. .I 297 (1984). 305 (1984). Rev. 117 (1981). Rev. 118 (1981). QUESTIONS OF POLYGRAPH VALIDITY Another controversy surrounding use of the polygraph on the labor force is over the machine's accuracy. For years, scientists, academics and polygraph proponents have debated this issue. The three areas of concern are experimental verification of .the process, the examineefs emotional state, and the examiner's competence. lo/ - Although the polygrapti's accuracy has been assessed in criminal investigations, there have been no studies compiling data on its reliability in the workplace. David Raskin, an acclaimed scholar and psy- chologist on the accuracy of the polygraph, claims the machine's accuracy in criminal investigations is 90% but states its accuracy in 11/ employment contexts could be "no better than flipping a coin." The reasons for this possible difference are that a criminal suspect has a constitutional right to deny taking the exam, and the questions he is asked tend to be specifically related to the trial. An employee, -on the other hand, may risk losing his job if he refuses to submit to the employer's request thus making the testing atmosphere more coercive and anxious. Also, the types of questions the worker is asked tend to be vague and broad because these inquiries are meant to provide insight into the examinee's tendencies. This technique of pre- dicting the future is said to be highly speculative and inconclusive as a proper indicator of employee performance. 10/ "Wiretapping the Mind," 21 San Diego L. - Rev. 300 (1984). 11/ Hearings on Polygraph,,Controland Civil Liberties Protection Act bzore the Subcomm. on the Constitution of the Senate Comm. on the Judiciary. 95th Cong. 1st and 2d Sess. 31, 226 (1977-78). Another factor possibly interfering with reliable test results is the variability of a subject's mental condition. 12/ Weariness, mental ab- normalities or anger at the examiner's personal probings into the employee 's lifestyle can bring about unreliable results. Pear and stress are natural reactions even for a truthful person when he is subjected to a distrustful atmosphere. Furthermore, an argumentative examiner can aggravate the employee's tensions also causing adverse effects on the 13/ accuracy of the results.. - This brings us to the most important component in.the truth verification process: examiner competence. The examiner is the designer, administrator, and evaluator of the test and thus the results are eubject to his interpretation. Many employees feel accused when asked to take the test, and this-presumption of guilt often causes distrust of the examiner which in turn leads to a disruptive exam environment. The examiner must be sensitive to the subject's character in order to ensure the examinee's trust and cooperation - important factors aiding reliable test results. Most examiners are not considered fully qualified, i.e., possessing a college degree or extensive investigative experience, graduation from a L4/ school of polygraphy and successful completion of a competency exam. - Presently, some states have enacted legislation requiring that polygraph examiners obtain a license. These state statutes can be found in the attached Appendix. 121 "Wiretapping 13/ "Wiretapping 14/ - the Mind," 21 San Diego L. Rev. 301-302 (1984). the Mind," 21 San Diego L. Rev. 304 (1984). "Polygraphy in the Workplace," 18 U. Rich. L. Rev. 54 (1983). THE EMPLOYMENT AT WILL DOCTRINE An employment contract of indefinite duration is typically held to be terminable at the will of either employer or the employee, and no reason need 15/ be given for termination by either party. In recent years Congress and - state legislatures have put some constraint on this common lav doctrine and 16/ enacted legislation protecting employees from harsh acts by employers. - Nevertheless, the at will doctrine prevails unless there is a collective bargaining agreement, a contractual provision, a statute, or a judicially17/ conferred right which limits the possibility.of wrongful discharge. The - - New Hampshire Supreme Court in Monae v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), for instance, decided that the employer's interest in conducting his business as he wishes must be weighed against the employee's interest in maintaining his employment and the public's . i n maintaining a balance between the cwo. interest That court held a breach of the employment contract occurred when the employer terminated the employee's contract in bad faith (the employee refused to date the foreman). Id. Alternatively, an employee can adopt another approach in pleading exception from the at will doctrine. Where discharging an at will employee violates a clear mandate of public policy, the employer may be held liable - . - in tort. - -. See Parnar v. Americana Hotels, Inc., 65 Hawaii 370, 652 A.2d 625 15/ 9 Williston, Contracts § 1017 (3d ed. 1967); Annot., 51 A.L.R. 2d 742(1957). 16/ Demonstrating federal regulation of wrongful dismissal is Title 42 U.S.C. § 2000e-2 (1976). VII o f t h e Civil Rights Act of, 1964 § 703(a), 171 A key article on the at will doctrine is Blades, "Employment at Will G. Individual Freedom: On Limiting the Abusive Exercise of Employer Power," 67 Colum. L. Rev. 1404 (1967). (1982) where a terminable at will employee's right was upheld to sue her employer for retaliatory discharge. Similarly, in Molush v. Orkin Exterminating Co., Inc., 547 F. Supp. 54 (1982), a former employee pleaded a valid cause of action against his employer for tortious discharge. The plaintiff there claimed that his employer requested him to take a polygraph exam and that his dismissal was based on the results of that exam. This conduct violated the Penn- sylvania statute which makes it unlawful for an employer to require a prospective employee to submit to a polygraph exam as a condition of emplopment. The court in Molush held the "causal connectionw between the exam and the dismissal was sufficient authority to grant a tort action against the employer. Id at 56. Still another case upholding tort actions against an employer f o ~ - wrongfully discharging'an employee is Perks v. Firestone Tire & Rubber Co., - 611 F.2d 1363 (3d Cir. 1979). There the employee was terminated for refusing the employer's request to submit to a polygraph exam. The same situation occurred in Cordle v. General Hugh Mercer Corp., 325 S.E. 2d 111 (W. Va. 1984). That court determined the plaintiff's wrongful discharge violated a significant principle of public policy opposing such testing. Id. - at 113. Additionally, the court noted that at will employees need not be distinguished from other employees who have certain protections in circumstances involving public policy. Id. - at 114. Furthermore, the court recognized that "the public policy against such testing is grounded upon the recognition in this state of an individual's interest in privacy.' Id. - at 117. (Note that West Virginia has a statute limiting the use of polygraph exams. ) Bbwever, t h e r e may be a s l i d i n g scale measuring p u b l i c p o l i c y v i o l a t i o n s i n terms o f job s t a t u s . tol-Myers Co., - - T h i s w a s b e t t e r s t a t e d b y t h e c o u r t i n Cort v. Bris- 385 Mass. 300, 431 N.E. 2d 908 (1982): I n p u b l i c p o l i c y terms, i t i s t h e d e g r e e o f i n t r u s i o n o n t h e r i g h t s of t h e employee I n measuring t h e which i s most i m p o r t a n t . n a t u r e of t h e i n t r u s i o n , a t l e a s t as t o i t s reasonableness...., t h e n a t u r e of t h e employee's job i s o f some s i g n i f i c a n c e . The i n f o r m a t i o n t h a t a h i g h l e v e l o r c o n f i d e n t i a l emp l o y e e should r e a s o n a b l y be e x p e c t e d t o d i s c l o s e i s b r o a d e r i n s c o p e and more p e r s o n a l i n n a t u r e t h a n t h a t which s h o u l d b e e x p e c t e d from a n employee who mows g r a s s o r e m p t i e s waste baskets. A salesman r e s p o n s i b l e f o r t R e s a l e o f d r u g p r o d u c t s t o h o s p i t a l s , doct o r s , & pharmacies f a l l s i n t h e m i d d l e o f t h i s range, b u t toward i t s upper s i d e . I d . a t 305, 431 N.E. 2d a t 913. - I n t h a t c a s e p u b l i c p o l i c y was found n o t t o be v i o l a t e d when a n emp l o y e e a l l e g e d h i s employer had invaded h i s p r i v a c y by a s k i n g him t o answer p e r s o n a l q u e s t i o n s on a q u e s t i o n n a i r e . Thus s i g n i f i c a n t f a c t o r s de- t e r m i n i n g whether a c o u r t w i l l a l l o w a p u b l i c p o l i c y v i o l a t i o n argument may be o n e ' s o c c u p a t i o n and s t a t e s t a t u t e . However, employers sometimes c a n overcome t h e o b s t a c l e of a s t a t e s t a t u t e r e s t r i c t i n g polygraph exams i n t h e workplace. P a r c e l S e r v i c e , Inc., I n Cisco v. United 328 Pa. Super. 300, 476 A.2d 1340 (1984), b u s i n e s s r e p u t a t i o n was v a l u e d more t h a n t h e i n d i v i d u a l ' s l o s s o f h i s job. c h a r g e s were f i l e d a g a i n s t a n employee-deliverer, discharged. Criminal and h e was s u b s e q u e n t l y The employee brought a n a c t i o n i n t r e s p a s s c l a i m i n g he was wrongfully discharged, but t h e c o u r t h e l d t h e employer's reason f o r discharge was p l a u s i b l e and t h a t no p u b l i c p o l i c y was v i o l a t e d . Another example of employhrs e s c a p i n g t h e l e g i s l a t u r e ' s r e s t r i c t i o n of polygraph t e s t i n g i s Wriqhr v. Commonwealth of P e n n s y l v a n i a Unemployment Compensation Board o f Review, 77 Pa. Commv. 278, 465 A.2d 1075 (1983). That case i n v o l v e d a n employee a l l e g i n g h e r employer had v i o l a t e d t h e s t a t e s t a t u t e p r o h i b i t i n g employers from r e q u i r i n g t h e i r employees t o submit t o polygraph exams by having h e r polygraphed d u r i n g a n i n v e s t i g a t i o n where s h e w a s suspected of t h e f t . The c o u r t h e l d t h a t when t h e employer t u r n e d t h e i n v e s t i g a t i o n o v e r t o t h e p o l i c e and t h e y a d m i n i s t e r e d t h e t e s t , t h e employer d i d not v i o l a t e t h e state s t a t u t e . Sometimes a n i s s u e c a n t u r n on v h e t h e r t h e company r u l e s w i l l d i c t a t e a d m i t t i n g t h e employee's polygraph exam results a s e v i d e n c e i n a t r i a l f o r wrongful d i s c h a r g e . - I n Green v. American Cast I r o n P i p e Co., 446 So.2d 16 (Ala. 1984), a n employee w a s under i n v e s t i g a t i o n f o r h i s a l l e g e d u s e and s e l l i n g o f m a r i j u a n a . The p l a n t r u l e s provided t h a t a n employee c o u l d be r e q u i r e d t o t a k e a polygraph exam, and t h a t t h o s e exam r e s u l t s c o u l d be c o n s i d e r e d by i t s I n v e s t i g a t i n g Committee. Id. - a t 18. The Alabama Supreme Court. upheld t h e t r i a l c o u r t ' s d e c i s i o n t o admit t h e r e s u l t s of Green's polygraph t e s t i n t h e t r i a l o f h i s a c t i o n f o r wrongful d i s c h a r g e . I t s h o u l d be noted however t h a t Ala- bama h a s no a n t i - p o l y g r a p h s t a t u t e . L a s t l y , c o u r t s have r u l e d on t h e a p p l i c a b i l i t y o f waiver forms t o t o r t actions. Before a polygraph exam, t h e employee may b e asked t o - -. - - s i g n a c o n s e n t form s t a t i n g t h a t he i s v o l u n t a r i l y t a k i n g t h e exam and t h a t h e waives a l l l i a b i l i t y a g a i n s t t h e employer and t h e polyg r a p h e r a r i s i n g from t h e t e s t . C o u r t s have t r e a t e d d i s c h a r g e d employ- e e s who b r i n g a c t i o n s a g a i n s t t h e i r employers i n t h i s s i t u a t i o n accordi n g t o t h e r e s p e c t i v e s t a t e s t p t u t e s and p u b l i c p o l i c y c o n s i d e r a t i o n s . I s i n g v . Barnes H o s p i t a l , 674 S.W.2d 623 (Mo. C t . App. In 1984), t h e M i s s o u r i Court of Appeals found t h a t a n employee a t v i l l c o u l d be d i s c h a r g e d f o r r e f u s i n g t o s i g n a c o n s e n t and w a i v e r form. M i s s o u r i h a s no s t a t u t e r e s t r i c t i n g t h e u s e o f polygraph exams i n t h e workplace. But i n P e n n s y l v a n i a , which h a s a s t a t u t e l i m i t i n g polygraph u s e , a r e l e a s e form was h e l d i n v a l i d and t h e d i s c h a r g e d employee was allowed t o b r i n g a n a c t i o n f o r wrongful d i s c h a r g e . See P o l s k y v. Radio Shack, 666 F.2d 824 ( 3 r d C i r . 1981). THE POLYGRAPH IN LABOR ARBITRATION Q u e s t i o n s r e g a r d i n g u s e of t h e polygraph have a l s o a r i s e n i n t h e l a b o r a r b i t r a t i o n process. Polygraphs a r e commonly used by management t o d e t e c t 181 employee t h e f t and t h e n t o j u s t i f y t h e subsequent d i s c h a r g e . An employee - may b r i n g a g r i e v a n c e t o h i s union, t h e c o l l e c t i v e b a r g a i n i n g a g e n t f o r t h e workers. Both t h e u n i o n ' s and management's views a r e t h e n r e p r e s e n t e d a t a n a r b i t r a t i o n h e a r i n g where t h e m a t t e r a t hand i s d e c i d e d by an a r b i t r a t o r . Regarding polygraph usage, a r b i t r a t o r s have been c o n f r o n t e d w i t h c o n f l i c t i n g 191 . p r i o r d e c i s i o n s , confused c a s e law, and p a r a d o x i c a l s t a t u t e s . - One i s s u e e x p l o r e d by a r b i t r a t o r s i s t h a t of t h e consequences of a n employee's denying a n employer's demand t o submit t o a polygraph t e s t . A g r e a t d e a l of a u t h o r i t y s u g g e s t s t h a t employees s h o u l d n o t be p e n a l i z e d f o r r e f u s i n g t o submit t o l i e d e t e c t o r tests; and t h a t where a n employee does t a k e t h e exam, t h e r e s u l t s s h o u l d be g i v e n l i t t l e o r no a t t e n t i o n . A r b i t r a t o r s seem t o p r e f e r o t h e r t y p e s of e v i d e n c e a l t h o u g h t h e exam r e s u l t s 20/ a r e useful f o r corroboration. - 181 C a r r , "Employer Use of t h e ' L i e D e t e c t o r ' : p e r i e G e , " Lab. L.J. 701 (1984). 191 I d . a t 713. 20/ E l k o u r i and - The A r b i t r a t i o n Ex- E l k o u r i , How A r b i t r a t i o n Works, 268-69.(1973). Additionally, arbitrators must be aware of pertinent state statutes; however, their decisions have been inconsistent regarding the impact of state laws on polygraph usage. In Brinks Inc., 78-1 Lab. Arb. Awards (CCH) 88236, (1978) the use of any polygraph evidence at an arbitration hearing was found to be forbidden by a Massachusetts statute. But in Golden Pride Inc., 68 Lab. Arb. (BNA) 1232 (1977) the arbitrator admitted the results from the polygraph exam because the employee took the test voluntarily. There the Maryland law prohibiting mandatory polygraph testing was considered not violated. Concerning voluntariness as a prerequisite to any admission of polygraph evidence, most arbitrators enforce this arrangement unless a collective bargaining agreement provides otherwise. That is, the results are 21/ usually ignored if an employee is forced to submit. In Glenn Manor - Home for the Jewish Aged, 81 Lab. Arb. (BNA) 1178 (1983), management administered polygraph tests to employees suspected of stealing from the elderly residents. sequently fired. to be reinstated. The employees refused to take the test and were subIn that decision, the arbitrator ordered the employees Similarily, in Bisbee Hospital Association, 79 Lab. Arb. (BNA) 977 (1982), a patient was reinstated after refusing to take a polygraph exam. Again, the arbitrator cited the majority view that refusal to take a polygraph exam is not just cause for dismissal. However, in Grocers Supply Co., 75 Lab. Arb. (BNA) (CCH) 27 (1980), an employee refused to abide by the waiver he had signed at the beginning of his employment. There the arbitrator bound the employee to his original agreement and upheld his discharge. 21/ - Lab. L.J. supra at 796. Another issue concerning arbitrators is hov they should respond when an employer has imposed lie detector tests in violation of state law. In Safeway Stores, Inc., 82-2 Lab. Arb. Awards (CCH) U8506 1982, an employee was given a polygraph exam after conflicting evidence was produced regarding the employee's involvement in a car accident. graph exam and was terminated. The employee failed the poly- The union contended that the test was given in violation of a Washington statute forbidding an employer from requiring a polygraph as a condition of employment. Nevertheless, the arbitrator de- cided the law was not violated because the employee submitted to the test voluntarily, and therefore it had not been a 'condition1 of employment. Also in Sunshine Mining Co., 77 Lab. Arb. (BNA) 1260 (1981). upheld management's decision to terminate an employee. an arbitrator The worker, accused of harrassing a strike-breaker, refused to take a polygraph exam and was suspended. AC arbitration the union contended that the employer had violated the Idaho statute barring polygraph use and therefore also breached the employment contract containing a conflict of laws clause. However, the arbitrator stated that the act, though possibly illegal under state statute, did not specifically violate any contractual provision. Id. - at 1262. Thus, for the employee to obtain relief he would have to bring the statutory violation to the local prosecutor's attention. The employee would then have to file a civil suit for damages or for reinstatement with back pay. The previous case illustrates the difference between the courtroom process and an arbitration hearing. Because the latter is a private pro- cedure, there are no legal dutfes to follow requirements of due process. 22/ - Id. at 711. 22/ - Thus a n a r b i t r a t o r ' s i n t e r p r e t a t i o n of t h e employment agreement would be f a c i l i t a t e d i f he could r e l y on more c o n s i s t e n t p r e c e d e n t s and more s p e c i f i c c o n t r a c t u a l p r o v i s i o n s r e g a r d i n g polygraph usage. NLRB DECISIONS REGARDING THE POLYGRAPH The N a t i o n a l Labor R e l a t i o n s Board (LRBB) has had s e v e r a l c a s e s come b e f o r e i t c o n c e r n i n g polygraph usage. Again, i n c o n s i s t e n c y p e r v a d e s t h e s e d e c i s i o n s and h a s r e s u l t e d i n a stand-off between l a b o r and management. I n F i x t u r e s Manufacturing Corp., 251 NLRB No. 107 ( 1 9 8 0 ) , an employee was s u b j e c t e d t o a polygraph exam a l l e g e d l y because of h i s union a c t i v i t i e s . The t e s t i m p l i c a t e d t h e employee i n t h e f t s t a k i n g p l a c e a t t h e employer's f a c i l i t y , and t h e worker .was d i s c h a r g e d . The Board r u l e d t h a t t h e examination had unlaw- f u l m o t i v a t i o n s and t h a t t h e employer had committed a n u n f a i r l a b o r p r a c t i c e . Hovever, i n C o n s o l i d a t e d Casinos Corp., Sahara Div., 266 NLRB No. 172 (1983), a gambling c a s i n o o p e r a t o r was found n o t t o have a c t e d u n l a w f u l l y by r e q u i r i n g h i s employees t o t a k e a polygraph exam d u r i n g t h e weeks p r e c e d i n g a r e p r e s e n t a t i o n e l e c t i o n , where t h e c a s i n o was under i n v e s t i g a t i o n f o r gambli n g i r r e g u l a r i t i e s by t h e s t a t e commission and t h e e x a m i n a t i o n was r e l a t e d t o the investigation. Also i n Munford, I n c . , World Bazaar Div., 266 NLRB No. 205 (1983), t h e employer's a d m i n i s t r a t i o n of polygraph t e s t s was n o t c o n s i d e r e d u n l a w f u l when it w a s based on i n v e n t o r y s h o r t a g e s . On t h e o t h e r hand, i n R e s t a u r a n t Management S e r v i c e s , I n c . , 266 NLRB No. 144 (19831, a n e m p l o y e r ' s use of l i e d e t e c t o r s d u r i n g a n a l l e g e d i n q u i r y i n t o a n employee t h e f t w a s h e l d t o c o n s t i t u t e a n u n f a i r l a b o r p r a c t i c e . Here t h e employ- e e s were i n v o l v e d i n union a c t i v i t y and were asked t o t a k e t e s t s , a f t e r which t h e y were d i s m i s s e d . I n d i c a t i o n s of employee t h e f t had been p r e s e n t f o r s e v e r a l months b u t t h e employer i n i t i a t e d polygraph t e s t s o n l y a f t e r union d i s c u s s i o n s had persisted. Also to be noted was that the entployees signed consent forms when they were hired. Nevertheless, this was held not to absolve the employer from administering illegal polygraph tests. CURRENT LEGISLATION Presently, there is no federal lav controlling the use of polygraph testing in the private sector. Several different types of legislative proposals are pending in Congress. H.R. 1524, 99th Congress, has been proposed by Rep. Pat Williams (DMont.) to prohibit polygraph use as a condition of employment for job appli- cants and employees. The bill would exempt federal, state and local govern- ments. H.R. 1924, 99th Congress, is a similar proposal introduced by Rep. Stewart McKinneg (R-Ct). This stricter bill would ban the use of the polygraph in private industry, impose fines on those who violate the law, and allow aggrieved workers and applicants to file suit for damages. The measure contains an exemption for the Department of Defense, the National Security Agency, and the CIA when contracting with private industry for 23/ national defense and intelligence purposes. - H:R. 1792, 99th Congress, was introduced by Rep. Butler Derrick (D- SC) and would require uniform qualification standards for polygraph examiners. 23/ House Committee Considers Proposal tb Ban Polygraphs in Private ~rn~lozent, 147 Daily Labor Report A-11, July 31, 1985. Hearings on the proposed banning of .polygraphs were held before the 24/ House Labor Subcommittee on Employment Opportunities on July 30, 1985. Testimonies were given by business groups, unions, academicians and civil libertarians. 24/ Statements Before Eiouse Labor Subcommittee oo Employment Opport u t s on Use of Polygraphs in the Workplace, 147 Daily Labor Report F-1, July 31, 1985. APPENDIX COMPILATION OF STATE AND FEDERAL PRIVACY LAWS ROBERT ELLIS S M I T H Published by PRIVACY JOURNAL An Independent Monthly on Privacy in a Computer Age a , u L - u g g a t i n g or muiring a lie-drcecling t a t in privsle or public employment (except police applicant) is prohibited. Maximum penalty: 51.000 and one year. Alaska Stat. Sec. 23.10.037. -icense is required: grounds for refusal. suspension or revocation of license include failing to inform subject thaI parucipation is voluntary. making inquiries during preemployment exam rrgarding refigious. labor. scxuai activities or political affiliation. failing to inform subject of resul~ if m p ~ ~ ~Ark. t t dRev. Stat. SCC. 32-270 I . CaUforni.--(:al. labor Code xc. 432.2 prohibi~ polygaphing in private employ men^. Police officers do not b v e to submit to polygraphing in dep~mrenralinvatigatiotu. Cal. Gov't. Code sa.3307. Gcn. Stat. Ann. xc. 31-51g proC-t-Com. hibits an employer or employment asency from.using poiygraph or similar device. Penalty: SZSO to 5 1 .000. in both public and private employment is prohibited. Del. Code tit. 19. scc. 704. De4aw-U~ Dktrk! of Cdambia-Polygrapfu may not be used a acondidonof employment. D.C. Code uc.3640l'to 803. Hawaii-Haw. Rev. Stat. KC. 378.11 pmhibiu use in both public and private employment. Maximum penalty: 51.000 and one year, Idrbo-Pmhibio polygraphing in private employment: . exempts governmental agencies. Idaho Code ~ c*W3. Iowa-Employen may not q u i r e an applicant or employee to take a polygraph tcst as acondiuon of employment. exccp for applicants falaw enforcement jobs. Iowa Code Ann. 1983 I n e m Suppl. ch. 730.4. --A gnph -. employer may not request or s u g g a a p l y Me. Rev. Stat. t ~32, . sec. 7166. [SeeA-x. ] Mpr).ian&Md. AM. Code an. 100. xc. 95 requires private and public employen to inciudc the followinn language on applications: "Under Maryland law an employer may not requirr or demand any applicvlt for employment or prospective employment or any employee to submit to o r take a polygraph. lie decmor or simllu test or examination as a condition of empioyment or conunucd employment. Any employer who violates this pmvision is guilty of a misdemeanor and subject to a fine not to ex& S 100." (Set 78-79 book. ] M a s a d u s e n h M a s s . Gcn. Laws. Ann. ch. 149. xc. 19B prohlbiu use in empioymrnc exempcs law enforcement officials in the performance of their duties. Fine not to exceed SZOO. --Ernployen m y not quire a "lie dcrcnor" or similar test of an employee nor discharge an employee for f d to submit ~ to a test or w l d y for aUgtdly lying in r ten. Empioyen may not k q u i n d to waive their rights and must receive a copy of this law if q u e s t e d to taka p 0 1 y m exam. An employer may mt usc dr rud5 of a pdylgaph teat nor divulge c&m. Mi&. Comp. L w i . Ann. set. his own quest. che r u u l u may go only to thox authorized by the individual tnttd. and it is a misdemeanor to disclose chat anochu paJon has &en a polygraph test. .Mim. S u . Ann. set. 181.73. penan. fkm a c o y n n o a s b i l requkc Mmtma-'No a co~dnuldonof employment any prsoa to take a p l y gnph tcst or any fonn of a mechanical lie derenor tut." Moat. Rcv. Codcs Ann. xc. 39.2-304. NckrrL.-Genaally 00 may q u i r e a aufh &ati- test as a coadiaoa of employmax. unless ( 1) thae are w @om on sex, poiitia, labor oguridng, religim, or m&agc; (2) the sdqec2 voiuntccn, in writing: (3) the m t is pb r~lroedd not seisriveiy admmistntd; (4)it is pert of a l p & c investigaoa! a d noc tbc sole daPmuuPt. Neb. Rcv. S t a . sec. 81-1932. Ncrrd.--Wrim amscnC to fake a rtsr is require4 and ~ L a L i m i t w q u t s t i o r uNcr. . Rev.Stat. scf. M A . 1%. New Jerxy-4i.J. Stat. Ann. ~ c 2A:170-90.1 . states & any employer who influences or r q u i m a polygnph test is a disordcriy penon. New M e 6 L i c e n s e required: may k revoked or r e f w d if examiner asks any quation relative to xxual affairs. racr c d . religion. union affjliation or acriviry not previously a g m d to by wrincn consent. N.M. Stat. Ann. KC. 67-31A-1. New Y o r k - 4 0 employer may rquirc. request. suggest or knowingly -it applicant to takda t a t with a psychole gical s t m s evaluator. a machine that purpom to dctccr falsehoods. An employer may not w test mults. A practitioner may not administer a test to an employee. An employee may not be discriminated against for complaining about a vioiation of this law. N. Y. Labor k w x c . 733. O r e g o d . Rev. Stat. ~ c 6.5 9 . 2 5 prohibits use in private and public employment. Maximum pnaity: SSOO and one year. Pnuuyivan&l8 Pa. Cons. Stat. Ann. sec. 7321 prohibiu employment polygraphing except for those persons in law enforcement or thox who have access to narcotics or dangerous drugs. Maximum penalty: 5503 or one year. Rhode Isfond-R.1. Gen k w s sec. 28-6.1-1 prohibits w in both public and pnvate empioyment. Maximum fine: C - M Tam-A rcsr m w k voluntary and the wbjtcl infomKd of the rrsults. Tex. Rev. Civ. Sm.an.44 lJ(29cc). Utah-It s W k uniawful for refusal to submit to a surrqmdoru exam to k dr basis for denying or terminacing m p i o y m t . Utah Code Ann. xc. 34.37-16. V a s a t - 4 i m i l u to Arizona's. Vt. Stat. Arm. dt. 26, s. 2901. Vkghh-Qucstlons set. on sex a n ; hibitai. Va. Code 56916 to 922. 37.201. I employer may not request. m u l t z or c a r c e an mdivldual to take any test, ~ncludinnvo~ccstress analys~s."purpomng to test the honesty of any employee or prospccr~vcemployee." Even ~fa person takes such a test ~t ,Minnaota-An -- W e VIrgtai.-bpioycn may not sub* employees or applicanu to tests. W. V a Code scc. 21-Ma. [See A p pcW.1 W b m d e - P o l y p p h i are pcrmaai in employment ~f the pason consents m mnng, if quesaoru axe disclosed in advance. and if here 1s a chance to make the mt. A person may be fired for the d u . but not for refusing to rake a -strus evduafon may mx be &. Wisc. E t . Psyctrolo~cal -- - -- Georgia Polygraph cvams a r e l i a i t e d t o no more than 15 questions (and no fewer than seven), and a l l questions must be provided i n advance i n writizg. A persen examined is e n t i t l e d t o a written capy of the results, ahd no o n e - e l s e may receive t ? e r e s u l t s wit5out consent of tie examined pecson. N o questions may be asked about r e l i g i o n , p o l i t i c s , race and r a c i a l opinions, labor organizing, o r sexuai a c t i v i t i e s . An examiner may be sued f o r v i o l a t i o n s of t h e a c t , passed i n ?!arch 1985 a s Sa 1 9 , Ga. Code Ann. 43-36-1. -- Illinois Polygraph e x d n e r s may not a s k about r e l i g i o n , h e l i e f s on racial e a t t e r s , p o l i t i c a l views, labor organizing o r union membershi?, sexual preferences, o r sexual a c = i v l t i e s u d e s s t h e inquiry is "direczly r e l a t e d t o the employment." I l l . S t a t . Ann. 2 4 1 5 . 1 . CRS- 19 BIBLIOGRAPHY 'Can L i e D e t e c t o r s B e Trusted?' N.Y. Times, J u l y 20, 1982. "Defamation, I n v a s i o n of P r i v a c y , and U s e of L i e D e t e c t o r s i n Employee an Overview," 4 G l e n d a l e L. Rev. 189 (1982). Relations - "Employer Use of t h e ' L i e D e t e c t o r ' : Lab. L.J. 701 (1984). "Ernplopment Polygraph T e s t i n g , ' 'Lie Box B a t t l e , " A.B.A.J. t h e A r b i t r a t i o n Experience," 35 15 U.C.D.L. 34 (1984). "Lie D e t e c t o r s a s Corporate T o o l s , " N.Y. 'Polygraphy Rev. 1 1 3 (1981). Times, F e b r u a r y 13, 1983. i n t h e Workplace, " 1 8 U. Rich. L. Rev. " P r a c t i c a l Law: J o b s , " 4 Update 5 1 (1980). "Recognition of a Cause of A c t i o n f o r Abusive D i s c h a r g e , " 10 U. ~ a - l t . L. Rev. 257 (1980). "The Pover of t h e Polygraph,' 8 8 Case & Corn. 3 (1983). " T r i a l by Machine," 12 Human R i g h t s 30 (1984). "Use of Honesty T e s t s Raises P r i v a c y I s s u e , ' 68 A.B.A.J. "Wiretapping t h e Mind," 21 San Diego L. Rev. 295 ( 1 9 8 4 ) . 6 7 1 (1982).