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Employees cannot be fired for failing polygraph test – US law

Mar 07, 2009 News

The U.S federal law governing lie-detector tests stipulates that an employee cannot be fired for failing the test, or for even refusing to take the test.

The Guyana Government has already fired the top brass of the country’s Customs Anti-Narcotics Unit (CANU) for failing polygraph tests, and now the government wants certain policemen and employees of the Guyana Revenue Authority to undergo the lie-detector tests in a move to root out corruption.

In mid-June last year, the government fired CANU head Orville Nedd and eight others from the Unit after they failed the test.

According to the Global Polygraph Network, employers are permitted to request that employees submit to a polygraph exam under some specific conditions as provided for by U.S. federal law. 

According to the Employee Polygraph Protection Act of 1988, as quoted by the Global Polygraph Network, for an employee to undergo an exam there must be a “reasonable suspicion” that the employee was involved in an incident related to a specific economic loss, either through theft, vandalism, embezzlement, or other misappropriation of money or property. 

In addition, the loss must be identifiable, meaning that the loss suffered by the employer must be specific and identifiable. General losses or shrinkage do not qualify.

Once reasonable suspicion is established, the U.S. law dictates that the employer makes a request in writing, asking the employee to take the exam. This request must advise the employee that the exam is voluntary, and that no action can be taken against him/her solely for refusing to take it. The employee must also be advised of the incident under investigation, the reason he/she is suspected of involvement, his/her legal rights, and a number of other notifications required under the law.

The examiner is not permitted to ask about losses other than those described in this document. This request must also include the date, time and location of the scheduled exam. This request must be presented to the employee at least two business days prior to the scheduled exam.

If the employee refuses to take the examination, the employer may take no “adverse employment action” against the employee as a result of this refusal.

This means that the employee cannot be terminated, demoted, or lose pay or position solely because of this refusal.

If an employee “fails” the test, the employer still may not take an “adverse employment action” against the employee without additional supporting evidence indicating the employee’s involvement in the loss, the law states.

However, the “reasonable suspicion” of involvement originally required for the exam is sometimes sufficient to qualify as this “additional supporting evidence”.

The Guyana Public Service Union (GPSU) criticised the government when the CANU officers were fired for failing the test, and is once again expressing its frustration, describing the latest moves as arbitrarily discriminatory and unlawful.

 

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