They used to be! Polygraph tests were once very common in retail hiring to cut down on potential employee shoplifting. The testing was largely banned in private-sector background screenings by the 1988 Employee Polygraph Protection Act (EPPA) due to high rates of inaccuracy, lack of scientific validity and its misuse to intimidate innocent applicants. The tests were deemed “fear detectors” rather than lie detectors, often producing false positives, while raising concerns about employee privacy and fairness.
Key reasons for the ban included:
- Scientific Unreliability: Research indicated there was no consensus on the reliability of polygraphs, with accuracy rates not robust enough to justify employment decisions;
- High False Positives: Tests frequently marked innocent applicants as guilty, particularly when used for wide-scale screening rather than specific incident investigations;
- Fear and Intimidation: Congress found that companies used these tests as a tool to intimidate job applicants, with about 75% of two million annual tests being used in private-sector pre-employment screenings;
- Protection of Privacy: The EPPA protects against the potential abuse of personal information obtained through questioning.
Today, polygraph tests are generally illegal for pre-employment screening by private employers. Private firms cannot require or request applicants to take a test, nor can they refuse to hire someone for declining one. Exceptions exist for security, pharmaceutical, and government roles.
Key details regarding the legality of polygraphs in background checks:
- Prohibitions: The EPPA applies to most private employers, restricting the use of lie detectors in pre-employment screening and during employment.
- Exceptions:
- Security Firms: Companies protecting critical infrastructure, radioactive materials, or providing armored car/guard services can administer tests.
- Pharmaceutical Firms: Companies manufacturing, distributing, or dispensing controlled substances may use them.
- Governmental Agencies: Federal, state and local government employers are exempt from the law and can use polygraphs for screening.
- Ongoing Investigations: Private employers may test employees if there is reasonable suspicion of involvement in a workplace incident that causes economic loss.
- Consequences of Violations: Employers cannot use or inquire about test results or penalize employees for refusing a test. Violating these regulations can result in fines and legal action by the U.S. Department of Labor.
In addition, some states may have even stricter regulations than the federal EPPA. For the most part, terrifying a potential retail job candidate is a memory of the past.