Liar, Liar…Possible Changes Ahead for Lie Detection Legislation
Jenna Tynan[*]
Most of us experience the distinct pleasure of completing a job application at some point in our lives. One can expect standard questions including name, address, and employment history. Depending on the state, employers may or may not ask questions related to an applicant’s gender orientation, marital status,[2] or criminal history.[3] But how does an employer know if you lie? Recently, I discovered the most curious statement on a Massachusetts-based application: It is unlawful to administer lie detector tests to job applicants. Interestingly enough, Massachusetts law requires that all employment applications display these notifications.[4] An employer who administers an illegal lie detector test faces fines up to $1,000 for initial violations and even imprisonment for subsequent violations. These penalties also apply to employers that fail to provide notice statements on their applications.
Many states actually have similar “lie detector” laws limiting employers’ use of polygraphs and other examinations to test current and prospective employee honesty. These state laws are extensions of the federal Employee Polygraph Protection Act (EPPA),[5] which also prohibits private employers from administering lie detector tests. But state laws can differ drastically from the EPPA. First, the EPPA prohibits only physiological-based lie detecting tests. The Massachusetts Act prohibits using any lie-detecting instrument including written tests. And the EPPA exempts public employees from its provisions, whereas the Massachusetts Act does not. Finally, and most notably, the Massachusetts Act and a similar Maryland statute[6] require that employment applications contain notices that administering lie detector tests constitute illegal employment practices. The EPPA, however, only requires employers to post a description of the Act in the workplace.[7]
Both the EPPA and state lie-detector statutes leave certain employment practices untouched. Employers may still use polygraphs during misconduct investigations. Further, employers may still utilize behavioral interviewing methods.[8] Finally, these laws do not prohibit using Myers-Brigg Type Indicator (MBTI) tests, although using the MBTI as a pre-employment test, however, is generally disfavored.[9] Thus, prospective employers are free to use the STAR (Situation, Task, Action, Result) method of behavioral interviewing. Employers can even discover whether its workforce consists of E-J-S-T’s or I-N-F-P’s, using the Myers-Briggs test. They just can’t use tests to determine if applicants are L-I-A-R’s.
The EPPA and similar statutes have some meaningful benefits for applicants—they prevent employers from using inconsistent or inaccurate diagnostic tools to assess employee honesty.[10] In extreme circumstances, employers could use lie detecting examination results to hide discriminatory employment practices. For example, an employer’s firing decision may be driven by race-based, age-based, or gender-based motives. Yet, the employer could point to a failed lie detecting examination to support its decision, thereby concealing its discriminatory motive. Arguably, the EPPA and similar statutes also benefit employers by forcing them to utilize more probing and reliable reference checks than uncertain lie detection diagnostics. Moreover, if polygraph examinations were common employment practices, those employers forgoing the costly tests would potentially face greater liability under negligent hiring or negligent retention claims.[11]
Despite these potential benefits, the EPPA and state lie detector statutes have serious drawbacks. First, what “employers” are covered? This question may be especially tricky for volunteer organizations when the line between employee and volunteer begins to blur. Next, small businesses and those using online application systems bear a substantial risk of violating the notice provision of lie detector laws. Small businesses may be unaware of the law’s notice requirements. Moreover, online application systems may not effectively display notice statements on applications. Massachusetts’ businesses face minimum fines of $300 for initial violations, and senior officials may be imprisoned up to ninety days for repeat violations.[12]
A more serious concern, however, is what “employees” are covered. In this respect, the scope of these laws may go too far. For example, these laws prohibit polygraph tests for employees who are entrusted to care for loved ones. With harrowing stories of child abuse at home and at care facilities, it may be time for another carve out. Notably, the EPPA and other state statutes do exempt certain employees from polygraph protection.[13] Nevada, for example, allows polygraph tests to be given to manufacturers of controlled substances. Rep. Dennis Ross (R-FL) likely had these exemptions in mind when he recently introduced the “Protecting Our Children Act.”[14] The proposed law would exempt applicants who provide childcare from the protections of the EPPA. But the proposed law would prevent employers from subjecting current caregivers to polygraph analysis except for investigatory purposes.
Rep. Ross’ bill would restrict the EPPA’s application. And if the bill does pass into a law, some states may be inspired to add similar exemptions to allow for testing of child caregivers. State legislators may even find that more intensive statutory revisions are required. For now, Massachusetts-based job applications will still don curious lie detector notices. But no lie detector test can tell for how long.
[*] J.D. Candidate, Harvard Law School, 2016.
[2] Federal Laws Prohibiting Job Discrimination Questions And Answers, U.S. Equal Employment Opportunity Comm’n (Nov. 21, 2009), http://www.eeoc.gov/facts/qanda.html [https://perma.cc/8DGW-8NGW].
[3] FAQ, Ban the Box Campaign, http://bantheboxcampaign.org/faq/ [https://perma.cc/CGG9-5DZR].
[4] Mass. Gen. Laws Ann. ch. 149, § 19B (West 2014).
[5] Employee Polygraph Protection Act of 1988 (“EPPA”), Pub. L. 100-347, 102 Stat. 646.
[6] Md. Code Ann. Lab. & Empl. § 3-702 (West 2014).
[7] EPPA § 2003, supra note 4.
[8] Kathy Gurchiek, Behavioral Interviewing Popular, but Training in Use Urged, Soc. For Human Resource Mgmt. (Jan. 28, 2008), https://www.shrm.org/hr-today/news/hr-news/Pages/behavioralinterviewingpopular.aspx [https://perma.cc/HR64-CZ83].
[9] Pre-Employment Tests: What About the Myers-Briggs?, EmployTest (Mar. 16, 2011), https://www.employtest.com/employment-testing-blog/bid/58574/Pre-Employment-Tests-What-About-the-Myers-Briggs [https://perma.cc/ZHQ2-4C5S] (“The MBTI results do not translate well to the aggregate level. In effect, it does not create a “type” that can aptly describe a group of individuals, such as a work team within a company.”).
[10] The Truth About Lie Detectors (aka Polygraph Tests), Am. Psych. Assoc. (Aug. 5, 2004), https://www.apa.org/research/action/polygraph.aspx [https://perma.cc/S5CZ-GM3C] (“Most psychologists agree that there is little evidence that polygraph tests can accurately detect lies.”).
[11] See generally Nesheba M. Kittling, Negligent Hiring and Negligent Retention: A State by State Analysis, Am. Bar. Assoc. (Nov. 6, 2010), https://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2010/annualconference/087.authcheckdam.pdf [https://perma.cc/AGW4-GZMD].
[12] See supra note 3.
[13] See supra note 4 (exempting, e.g., federal, state, and local governments, private individuals engaged in national security-related activities, and private employees of companies in the security and pharmaceutical sectors).
[14] H.R. 4954, 113th Cong. (2014).