Of Lies, Lie Detectors, and California Employee Rights: Employee Polygraph Protection Act

It is probably safe to assume that most of us pay little attention to the required labor law poster regarding the federal Employee Polygraph Protection Act (EPPA).

But here’s a fun fact worth knowing: If a California private employer is tempted to strap an employee to a polygraph, it should probably strap itself to a good employment lawyer first.

Why? Because California has been suspicious of lie detectors for a very long time and a recent case just made the consequences of getting it wrong a lot more interesting.

A Brief History of “Are You Lying?”

In 1921, Berkeley police officer John Larson developed an instrument capable of recording physiological changes such as blood pressure, pulse, and respiration. The theory was simple: Ask questions, measure the body’s reactions, and determine whether the person is lying. What could possibly go wrong? Well, unsurprisingly, people figured out how to game the machine.

Over the years, people developed tricks such as biting their tongues, tensing muscles, controlling their breathing and, most famously, putting a tack in their shoe and pressing their foot against it during certain questions. Herein lies the problem: physiological reactions aren’t necessarily evidence of deception. Someone can be nervous because they’re guilty, but they may also react because they are nervous, frightened, angry, or simply uncomfortable being interrogated.

California Says “No Thanks”

As usual, California got the message early and, in 1963, enacted Labor Code section 432.2, generally prohibiting private employers from requiring applicants or employees to submit to a polygraph as a condition of employment or continued employment.

In 1981, the law was strengthened to require written notice of an individual’s rights before a polygraph was administered, since employees and applicants often did not know that they had a right to refuse the examination.

In 1986, the California Supreme Court went a step further. It said forcing someone to take a polygraph test raises individual privacy rights protected by the Constitution, while also emphasizing concerns about the reliability of the tests. In the Court’s verbiage, “If there is a quintessential zone of human privacy it is the mind.” It’s hard to argue with that.

In 1988, the federal government finally joined the party, when Congress enacted the EPPA, which generally prohibits private employers from requiring, requesting, or even suggesting that employees or applicants take lie-detector tests. Federal law does contain some limited exceptions, but those exceptions do not give California private employers a free pass.

Fast-Forward to Cannabis, Cash, and Lies

Which brings us to McDoniel v. Kavry Management, LLC. Kavry operated a licensed cannabis-growing facility where both cash and marijuana went missing. Management’s response? “You know what this investigation needs? Lie detectors.” Steven McDoniel was required to take a polygraph test. He “failed” and was fired based on the result. McDoniel sued, and a jury awarded him $100,000 in noneconomic damages.

The California Court of Appeal upheld the award and made important new law.

The Court was deciding a question that no California appellate court had addressed before: Is violating California’s polygraph law just a statutory violation, or can firing someone because of that violation create a separate wrongful-discharge lawsuit? The Court concluded yep, it’s a wrongful-discharge tort.

The Court found that section 432.2 protects a fundamental public policy: protecting employees and applicants from compelled polygraph testing based on longstanding concerns about both privacy and reliability.

In plain English, California’s “at will” employment rule generally allows an employer to terminate an employee for any lawful reason. But “at will” does not mean “anything goes.” An employer cannot fire someone for a reason that violates a fundamental public policy.

So the problem wasn’t merely: “Oops. We violated the polygraph statute.” It became: “Oops. We fired someone because of conduct connected to our violation of a fundamental California public policy.” And that can mean tort damages including noneconomic damages. For Steven McDoniel, the price tag was $100,000.

The Takeaway

California has been telling employers for more than 60 years that the employee’s mind is a pretty private place and McDoniel just put a price tag on ignoring that warning.

So, in California, when it comes to lie detectors, the safest way to catch a liar may be to check whether their pants are on fire.