Unless you’ve been focusing solely on the New Hampshire primaries today, you know that the other news headlines have been about former Yankees pitcher Roger Clemens denials of steroid use. In his interview with 60 Minutes, he suggested he might take a lie detector test — only to have his attorney yesterday say that would never happen.
But suppose that Clemens were still a Yankee (and suppose he wasn’t a union member and was in Connecticut). Could the Yankees, as his employer, require him to take a lie detector test given his refusal now to do so?
The answer is no, particularly not under the circumstances alleged.
Two laws come into play, one federal and one state. In Connecticut, state law trumps the federal law and does not permit their use for private employers.
First, The Employee Polygraph Protection Act (EPPA), 29 U.S.C. Sec. 2001 et seq., which falls under the jurisdiction of the U.S. Department of Labor, generally prevents private employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions.
Employers generally 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 or for exercising other rights under the Act. In addition, employers are required to display the EPPA poster in the workplace for their employees.
Federal law does carve out some exceptions:
- The Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors, and dispensers.
- The Act also permits 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.
- When the exams 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 and bonded or have professional liability coverage.
However, the EPPA does not preempt any provision of any state or local law that is more restrictive on the issue of lie detector tests.
And therein lies the key aspect for Connecticut employers — Connecticut does have a law that is more restrictive. Specifically, Conn. Gen. Stat. 31-51g prohibits the use of polygraph tests by private employers. (The law also prohibits the use of polygraph tests for state employees, with limited exceptions for those in various law enforcement positions.)
Specifically the law states:
No person, firm, corporation, association or the state or any political subdivision thereof shall request or require any prospective employee or any employee to submit to, or take, a polygraph examination as a condition of obtaining employment or of continuing employment with such employer or dismiss or discipline in any manner an employee for failing, refusing or declining to submit to or take a polygraph examination.
What’s the penalty for doing so? An employer can be fined between $250 to $1000 for each violation. However, it does not appear that the statute allows lawsuits by private employees for violations of this statute.
So, while private employers in Connecticut may resort to some types of electronic monitoring in the workplace to check on employees if it wishes, it can’t use polygraph tests to do so.
But expect to hear much more about lie detectors in the upcoming weeks. No doubt, if you’ve been watching Fox over the last few weeks, you’ve seen commercials for its new reality show debuting later this month — "The Moment of Truth". What do participants need to do to win potentially $500,000? Pass a lie detector test of course.