You’re at work sitting at your desk, happily completing your latest project. Your relationship with your employer seems strong and, to your knowledge, everything is going great. Then you receive an e-mail from Human Resources asking you to come to a meeting the next day at noon. When you arrive, the HR manager and your supervisor are there, and they start asking questions about some money that has gone missing from a customer account.
You tell them you know nothing about it, but they seem unconvinced. They ask you if you’d be willing to submit to a lie detector, or polygraph, test, just to make sure you’re telling the truth. You hesitate and think, “Can they do this? Is this legal?”
Do Any Laws Prohibit Employers from Using Lie Detectors?
Yes, both Nevada law and federal law prohibit employers from requiring employees to take lie detector tests, with exceptions. Indeed, in Nevada employers can’t even request or suggest that employees take polygraph tests. Nevada law makes it illegal for an employer to:
- “Directly or indirectly, require, request, suggest or cause any employee or prospective employee to take or submit to any lie detector test”;
- “Use, accept, refer to or inquire concerning the results of any lie detector test”;
- Discharge, discipline, discriminate against, or deny employment or promotion to an employee or applicant if the individual refuses or fails to take a lie detector test or exercises his or her legal rights regarding a lie detector test; the employer also can’t do any of these things based on a lie detector test or threaten to do any of these things.
What Are the Exceptions?
Nevada law provides a long list of exceptions to this law. Here is a summary of situations in which an employer can ask an employee or applicant to submit to a lie detector test:
- An employer has reasonable suspicion that an employee was involved in theft, embezzlement, misappropriation, industrial espionage or sabotage, or other economic loss (note that the employer has very specific notice requirements it must give to the employee);
- An applicant would be employed to protect facilities, materials, or operations with a significant impact on health and safety;
- An applicant would be employed as armored car personnel or security personnel or would be involved in the design, installation, and maintenance of security alarm systems;
- An applicant would have direct access to controlled substances, or an employee is suspected of misconduct involving controlled substances.
Even when doing a lie detector test is legal, the employer must use a polygraphic examiner who meets licensing requirements, and the employer can’t use the results of the test as the sole basis for taking adverse action against an employee or applicant.
What Remedies Are Available if an Employer Violates Nevada Law?
An employee or applicant can file a complaint with the Labor Commission or file a private lawsuit against the employer. She or he can also file a complaint or lawsuit on behalf of other employees or applicants who are “similarly situated.” A private lawsuit must be filed within 3 years of when the violation occurred.
The Labor Commission can fine the employer up to $9,000 for each violation. In a private suit, the employer is liable for lost wages and benefits, and a court can order the employer to offer a position to an applicant or reinstate or promote an employee. The court can also award the prevailing party reasonable costs and attorney’s fees.
What Does Federal Law Say?
Federal law contains very similar prohibitions, exceptions, and remedies. An employee or applicant can also file a complaint with the U.S. Department of Labor or file a private lawsuit under federal law.