The federal Employee Polygraph Act of 1988 generally prohibits private employers, other than drug manufacturers, security firms and providers of water electricity, hazardous wastes disposal and public transportation, under certain circumstances, from “directly or indirectly requiring, requesting, suggesting or causing any employee or applicant to take or submit to any test or use, accept, refer or inquire” into the results of a polygraph or lie detector test.
The employer may request polygraph and lie detector tests only under the following conditions: 1. It is investigating a specific incident or activity involving economic loss or injury to business; 2. The employee to be tested had “access” to property which is the subject of the investigation; and 3. The employer has “reasonable suspicion” that the employee was involved in the incident or activity under investigation.
Additionally, the employer must provide the employee with a written statement containing this information at least 48 hours prior to the test, signed by a company representative, and the employer must retain the statement for three years. The employer may not use the employee’s refusal to submit to the test or test results as the basis for adverse employment action “without additional supporting evidence.”
Under the Hawaii Employment Practices Act, private sector employers may not: 1. Require submission to a lie detector test as a condition of employment or continued employment; 2. Terminate or otherwise discriminate for refusal to submit to a lie detector test; 3. Ask whether a person is willing to submit to a lie detector test unless the person is informed orally and in writing that the test if voluntary and that refusal to take the test will not lead to termination or jeopardize prospective employment opportunities; 4. Subject a prospective employee to a lie detector test which includes unlawful inquiries regarding race, age, sex, religion, color, ancestry, marital status, physical disability, and arrest or court records; 5. Use any device which intrudes into any part or cavity of the body for purpose of truth verification; or 6. Discharge of discriminate against a person who has filed a complaint, testified or assisted in any proceeding regarding such unlawful practices.
Under Hawaii law, an employer shall not ask an employee or prospective employee if he or she is willing to have a relative submit to a lie detector test, unless there is a substantial relationship to the issues under investigation.
Applicants, employees, the state Attorney General, or the Department of Labor and Industrial Relations (“DLIR”) may file written verified complaints with the DLIR within 30 days of the occurrence or the discovery of the unlawful practice, whichever is later. If after investigation, DLIR determines a violation has occurred, it may order injunctive relief, including cessation of the unlawful practice, hiring, reinstatement or backpay. Failing resolution, DLIR may file suit in circuit court seeking these same remedies. In certain circumstances, DLIR may also seek civil and criminal penalties. No private right or civil cause of action exists.