When Congress passed the Employee Polygraph Protection Act in 1988, the use of polygraphs in investigations was virtually eliminated.

As you recall, that law outlawed the use of polygraphs (or truth detection devices) for most investigations.  The PPA contains two exceptions.  First, some employers are allowed to use polygraphs as part of an "ongoing investigation" into economic loss.  The other exception applies only for matters of national defense. 

A recent case out of Florida reminds us of the very remote instances when businesses can use polygraphs in employment.

In Polkey v. Transtecs Corporation, (11^th Cir. March 29, 2005), the company had a government contract to perform mailroom services for a naval air station.  Polkey was a supervisor who worked there for five years.  One day, there were a number of opened letters in the trashcan in violation of its mail tampering policies.  The company requested each of the five mailroom employees and Polkey to submit to a polygraph to "clear their name."   The form they were asked to sign said nothing about the tampering incident, nor was it signed by a company official.  Each refused to take the test, and they were all fired.

The Eleventh Circuit Court of Appeals noted that there is scant case law interpreting the PPA since the use of polygraphs has been virtually eliminated.  However, they pointed out that the few courts that have been confronted have applied the law literally.

Illegal to "Suggest or Request" a Test

First, the court noted that to merely "request or suggest" that an employee take a polygraph violates the statute.  It does not matter if one is actually administered.  Reading the law otherwise, stated the court, would be to ignore its plain language.

Next, the court looked to see if any of the exceptions applied.

National Defense Exception

In reviewing the "National Defense" exception, the court found that this exception applied only to the federal government.  Transtecs argued that the Department of Defense contract it operated under was for "counterintelligence operations," and that it should fit within that exception.  The court rejected that, finding that the National Defense exceptions by its terms "apply only to the federal government."

Thus, that exception does not extend to a private contractor, even though it is working for a federal agency.

The Ongoing Investigation Exception

Finally, the employer argued that the testing was covered by the "ongoing investigation" exception to the law.  To satisfy this exception, the employer must show the following:

·        The test was administered in connection with an ongoing investigation involving economic loss or injury to the employer's business,

·        The employee had access to the subject of the investigation,

·        The employer had a reasonable suspicion as to the employee's involvement in the loss, and

·        The employer provides the employee with a signed written notice that specifically identifies the economic loss at issue, indicates that the employee had access to the property being investigated, and describes the basis for the employer's suspicions.

The employer must prove each of the requirements for the exception to apply. 

The court found that the employer failed to satisfy the "reasonable suspicion" element.  The Regulations explaining the law define reasonable suspicion as an

"observable, articulable basis in fact which indicates that a particular employee was involved in, or responsible for, an economic loss." 

Thus, a generalized suspicion of a group that had the potential to do the loss is not enough to warrant giving a polygraph.

While we can all understand the employer's frustration here, unfortunately polygraphs are simply not as available for investigations into loss.  Blanket testing of a group of workers is not ever going to satisfy the PPA, since particularized suspicion is required.