This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement and private sector employee matters.
Can an employer in Virginia require an applicant or employee to submit to a polygraph examination in order to make a hiring or retention decision?
Although employers in the private sector are permitted to use polygraph examinations on their applicants or employees, employers must adhere to strict rules. These include providing “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.” In addition, there are federal and state restrictions on polygraph usage.
Employee Polygraph Protection Act
On the federal level, the Employee Polygraph Protection Act (29 U.S.C.§ 2001- 2009) provides for strict limits on the use of polygraphs in the workplace for applicants and employees. The EPPA bars most types of employers in Virginia (and other states) from requiring or even suggesting that a current employee or job applicant submit to a polygraph examination. The EPPA also prohibits employers from utilizing the results of any polygraph examination.
However, the EPPA does not apply to Virginia employees who work for federal, state and local governments. Polygraph examinations can often be part of the legal processing of a federal security clearance. The EPPA also does not apply to private sector employees engaged in security-related employment (e.g., security guard, armored car services). The EPPA permits polygraph testing, subject to restriction, of certain types of employees who are reasonably suspected of involvement in workplace theft or embezzlement that resulted in an economic loss to the employer. The Department of Labor has provided a good summary of the law under the EPPA act.
If an employer is found liable by a court under the EPPA for not following the law regarding polygraph use, the employer can be held liable for penalties up to $10,000; lost wages and benefits; and attorney’s fees. There is also equitable relief where an employee can seek reinstatement or lost promotions as a result of the employer’s violation of the EPPA. Thus, employers need to be extremely careful when considering the use of polygraph examinations under the EPPA.
Virginia State Polygraph Protections
Virginia provides additional protections for employees who submit to polygraph examinations. One major restriction bars questions about an applicant’s prior sexual activities. The 1977 Virginia law, in Va. Code Ann.§ 40.1-51.4:3, prohibits the use of certain questions during polygraph tests for employment, as follows:
“No employer shall, as a condition of employment, require a prospective employee to answer questions in a polygraph test concerning the prospective employee’s sexual activities unless such sexual activity of the prospective employee has resulted in a conviction of a violation of the criminal laws of this Commonwealth.
Any written record of the results of a polygraph examination given to a prospective employee by an employer shall be destroyed or maintained on a confidential basis by the employer giving the examination and shall be open to inspection only upon agreement of the employee tested. Violation of this section shall constitute a Class 1 misdemeanor.”
The law is rarely reviewed by the courts in Virginia, but has been approved. Denzler v. Henrico Cty Sch. Bd., 27 Va. Cir. 486, 488 (Henrico Cty. Aug 1984). As noted above, employers have a duty to keep the results of these tests confidential. §40.1-51.4:3. Violation of Virginia’s polygraph law, specifically regarding the types of questions asked and confidentiality, is a misdemeanor with a penalty of no more than twelve months in jail and/or a $2,500 fine.
If you need assistance with issues related to polygraph examinations in the workplace or other employment law issues, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on our Facebook page.