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Sexual Harassment Claims: Can I Make My Employees Take Polygraph Tests?

Polygraph tests have been in the news lately. We were recently asked whether an employer — a private company in the case we discussed — could require its employees to take a polygraph test.

Under current California law, the answer is “no” unless you receive consent from your employees. Here is a quick discussion.

San Diego Corporate Law: What is a Polygraph Test?

Many have probably seen a staged polygraph test on television or in the movies. For those who may not know, a polygraph test is intended to show signs that the subject is lying based on various involuntary stress reactions of the body. The subject is seated and various instruments are attached to various parts of the subject’s body to measure, for example, heart rate, blood pressure, etc. The subject is asked some control questions to obtain baseline measurements. Then the test-subject is asked the questions for which the subject is being tested. In theory, when we lie, there is stress and that stress is reflected in higher heart rates, blood pressures, etc. As the test-subject answers the questions, a running “tally” of the various measurements are made and are time-linked to each question. Spikes in the measurements of stress-indicators, in theory, suggests that the person was untruthful when answering that particular question.

San Diego Corporate Law: Polygraph Tests Not Allowed Without Consent in California

In theory, using a polygraph test might solve a lot of problems for an employer, but the California Legislature banned the use of polygraphs many years ago. California Labor Code, §432.2 states that:

“No employer shall demand or require any applicant for employment or prospective employment or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment.”

A similar statutory provision prohibits the government from using polygraph tests for those employed as a “public safety officer.” See Cal. Gov. Code, § 3307. Further, the California Supreme Court banned all mandatory polygraph tests for all other types of government employees in the case of Long Beach City Employees Assn. v. City of Long Beach, 719 P. 2d 660 (Cal. Supreme Court 1986). The court held that requiring that government employees submit to polygraph examinations was an unconstitutional intrusion “… upon the employees’ constitutionally protected zone of individual privacy and also violated their right to equal protection under the law.”

That being said, Labor Code §432.2(b) allows for an employer to request a lie detector test but only after “… first advising the person in writing at the time the test is to be administered of the rights guaranteed by this section.” Importantly, there can be no retaliation or adverse employment action if the employee or applicant says “no.” Even if polygraph tests are permissible, there are some cautionary notes for employers who may be thinking about using them. There are some large concerns about the scientific validity of the results and studies have shown that a person can be trained to “beat” a polygraph test.

Contact San Diego Corporate Law

For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard was recently named as “Best of the Bar” by the San Diego Business Journal for 2018. Mr. Leonard has received that honor for the past four years. Mr. Leonard has extensive experience in drafting employee policies, employee handbooks, employment contracts, and the other contracts and agreements necessary for running your business. Mr. Leonard can be reached at (858) 483-9200 or via email.

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Schedule a Consultation: 858.483.9200