Background Information
This week’s Discussion involves the controversial subject of employee lie detector testing at work. A polygraph is probably the most well-known type of lie detector. The Employee Polygraph Protection Act of 1988 (EPPA) 29 U.S.C. 2001 strictly limits the ability of private-sector employers to use any device to make a diagnostic opinion as to the honesty or dishonesty of an individual.
Under EPPA, employers may not:
require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test.
use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test or for filing a complaint or for participating in a proceeding under EPPA.
Despite these prohibitions, limited exceptions allow employers to administer polygraph tests, but not other forms of lie detector tests. Subject to restrictions, EPPA permits:
polygraph tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors, and dispensers
polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer.
Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing, and post testing phases. An examiner must be licensed if required by the state in which the test is to be conducted, and must be bonded or have professional liability coverage. EPPA strictly limits the disclosure of information obtained during a polygraph test.
The American Psychological Association (APA) has published the following statements on polygraph testing:
“Most psychologists agree that there is little evidence that polygraph tests can accurately detect lies.”
“The accuracy (i.e., validity) of polygraph testing has long been controversial. An underlying problem is theoretical: There is no evidence that any pattern of physiological reactions is unique to deception. An honest person may be nervous when answering truthfully and a dishonest person may be non-anxious. Also, there are few good studies that validate the ability of polygraph procedures to detect deception.”
Resources
Resource (1) On February 14, 2020, Kiplinger.com published an article entitled Should I Take a Lie Detector Test at Work?, written by H. Dennis Beaver, Esq., on the use of lie detectors in employment. Access the article here:
https://www.kiplinger.com/article/retirement/t012-c032-s014-should-i-take-a-lie-detector-test-at-work.html
(2) Among other things, EPPA provides:
Every employer subject to EPPA shall post and keep posted on its premises a notice explaining the Act. The notice must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment. There is no size requirement for the poster.
A link to a copy of that poster:
https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/eppac.pdf
(3) A link to a May 24, 2018 article entitled Goodbye polygraph? New tech uses AI to tell if you’re lying, written by Steven Melendez, and appearing on fastcompany.com. The article describes a new way of using machines and artificial intelligence, using a system called AVATAR, to detect when a person might be lying:
https://www.fastcompany.com/40575672/goodbye-polygraphs-new-tech-uses-ai-to-tell-if-youre-lying
WRITING INSTRUCTIONS
Answer these questions:
Question (1) Given the APA statements about the validity of polygraph tests (quoted above), would you recommend that employers use polygraph tests on employees, subject to the legal restrictions discussed above, of course. Why? If you say “yes”, be sure to discuss the ethical implications raised by the APA statements? If you say “no”, what would you recommend in place of a polygraph? Finally, regardless of whether you said “yes” or “no”, how could you be sure the employee being tested wasn’t lying?Question (2) What if you personally were asked to take a polygraph test at work under the “workplace incident” exception noted above. Would you comply? Why or why not?
Question (3) What about the emerging use of Artificial Intelligence to detect dishonesty as described in Resource (3) above? Do you think it is a good idea? Why? Do you think AI will be more effective in detecting lies than current technology? Why?
