Church leaders should be familiar with the main provisions of the federal Employee Polygraph Protection Act, since this law may impact churches in some situations. Consider the following:
Application. The Act applies to every employer engaged in interstate commerce (regardless of the number of employees). The Act contains no special rules or exceptions for religious organizations.
Definitions. A lie detector includes a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or similar device (whether mechanical or electrical) used to render a diagnostic opinion as to the honesty or dishonesty of an individual.A polygraph means an instrument that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards and is used to render a diagnostic opinion as to the honesty or dishonesty of as individual.
Prohibitions. An employer shall not:
- Require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test.
- Use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee.
- Discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or prospective employee for refusal to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding or for exercising any rights afforded by the Act.
Exemptions. Most government agencies are exempted from the Act. The Act also contains limited exemptions where polygraph tests (but no other lie detector tests) may be administered in the private sector, subject to certain restrictions. These include polygraph tests given to employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation.
Key point. Under the exemption for ongoing investigations of work place incidents involving economic loss, a written or verbal statement must be provided to the employee prior to the polygraph test which explains the specific incident or activity being investigated and the basis for the employer’s reasonable suspicion that the employee was involved in such incident or activity.
Posters. Federal regulations specify that “every employer subject to the [Act] shall post and keep posted on its premises a notice explaining the Act …. Such 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.” A free copy of the required notice can be obtained from the nearest office of the U.S. Department of Labor, Wage and Hour Division, or by visiting the DOL website (www.dol.gov/esa).
The official poster states, in part:
The Employee Polygraph Protection Act prohibits most private employers from using lie detector tests either for pre-employment screening or during the course of employment.
PROHIBITIONS
Employers are generally prohibited from requiring or requesting any employee or job applicant to take a lie detector test, and from discharging, disciplining, or discriminating against an employee or prospective employee for refusing to take a test or for exercising other rights under the Act.
EXEMPTIONS
The Act permits polygraph testing, subject to restrictions, of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in economic loss to the employer.
EXAMINEE RIGHTS
Where polygraph tests are permitted, they are subject to numerous strict standards concerning the conduct and length of the test. Examinees have a number of specific rights, including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.
Key point. The Employee Polygraph Protection Act contains no special rules or exceptions for religious organizations, and so the official poster can be used without modification. However, the courts have not addressed the question of whether the Act applies to ministers. For this reason, churches may want to add the following wording to the official poster: “This poster does not take into account the special rules that may apply to ministers.”
Qualifications of examiners. A polygraph examiner is required to have a valid and current license if required by a state in which the test is to be conducted, and must maintain a minimum of $50,000 bond or professional liability coverage.
Key point. Where polygraph examinations are permitted under the Act, they are subject to strict standards concerning the conduct of the test, including the pre-test, testing and post-test phases of the examination.
Employee rights. Civil actions may be brought by an employee or prospective employee in federal or state court against employers who violate the Act for legal or equitable relief, such as employment reinstatement, promotion, and payment of lost wages and benefits. The action must be brought within three years of the date of the alleged violation.
Conclusion. Many church leaders have been confronted with accusations of serious wrongdoing by a staff member. When the staff member denies any wrongdoing, church leaders may be tempted to suggest that the staff member take a polygraph examination. Such a suggestion should never be made without first obtaining legal counsel, since the mere suggestion that a staff member prove his or her professed innocence by taking a polygraph examination will violate the Act, and expose the church to potential liability, unless an exemption clearly applies.
This article first appeared in Church Finance Today, April 2008.
