Polygraph Examinations for Virginia Employees

By John V. Berry, Esq.. www.berrylegal.com

We are often asked about whether or not a Virginia employer can require an applicant or employee to take a polygraph examination in regards to hiring or retention decisions. The answer, while generally no, has a number of implications for both Virginia employees and employers. It is important to obtain legal counsel on these issues prior to taking a polygraph examination when issues arise.  This article discusses some of the issues that can arise in the context of attempting to require Virginia employees to take a polygraph examination related to their employment.

For Virginia employees, there are both federal and state restrictions on polygraph usage. It is important to know both areas of law.

Employee Polygraph Protection Act

On the federal level, Congress enacted the Employee Polygraph Protection Act, 29 U.S.C. §§ 2001- 2009 (EPPA of Polygraph Act). The EPPA provides for strict limits on the use of polygraphs in the workplace for employees and applicants.  The EPPA bars most types of employers in Virginia (and other states) from requiring or even suggesting that a current employee or job applicant take a polygraph examination.  The EPPA also prohibits employers from utilizing the results of any polygraph examination.

The EPPA does not necessarily 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.  It also does not apply to private sector employees engaged in  security-related activities (e.g. Security Guard, Armored car services). The Polygraph Act also 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 here.

When polygraph examinations are permitted for private sector employees in Virginia, there are numerous strict rules that most be followed.  These include “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.” See DOL Guidance.

The courts in Virginia, federal and state, have not had occasion to rule on these issues too often, but these cases likely get resolved early due to employer liability.  Harmon v. CB Squared Servs., 624 F. Supp. 2d 459, 472-472) (E.D.Va., Jan. 29, 2009) (Former employee was asked to submit to polygraph examination by employer and was told that his examination revealed deception; employer not granted dismissal of case because facts show that the employer had violated EPPA by causing the employee to take a polygraph examination and by referring to the results of the examination at the meeting to discuss the test results).

Should an employer be found liable by a court under the EPPA for not following the law regarding polygraph use, the employer can be held liable for: (1) penalties up to $10,000; (2) lost wages, benefits and (3) attorney’s fees. There is also equitable relief where an individual can seek reinstatement or lost promotions as a result of the violations of the EPPA.  In other words, employers need to be extremely careful when considering the use of polygraph examinations under the EPPA.

Virginia State Polygraph Protections

In the Commonwealth of Virginia, there are also additional protections for employees with regards to polygraph examinations.  Pursuant to the Virginia Code, the only major restriction on employer polygraph testing in Virginia involves the subject matter of such testing.  Virginia bars questions about an applicant’s prior sexual activities unless it is related to a conviction of such a criminal violation of the laws of Virginia.

The 1977 Virginia law, in Va. Code Ann. § 40.1-51.4:3, titled the Prohibition of use of certain questions on polygraph tests for employment, states 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 has been reviewed, only rarely, by the courts in Virginia, but 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 (regarding types of questions asked and confidentiality) comes with a misdemeanor with a penalty of no more than twelve months in jail and/or a $2500 fine. 
Conclusion
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.
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