Use of Polygraphs in Certain Employment Situations

VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW

FIELD OPERATIONS MANUAL

CHAPTER TWO
USE OF POLYGRAPHS IN CERTAIN EMPLOYMENT SITUATIONS

This document is part of the latest version of the Virginia Department of Labor and Industry Division of Labor and Employment Law's Field Operations Manual. This document supersedes any and all previous editions.

DISCLAIMER

The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor and Employment Law investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. The FOM was developed by the Labor and Employment Law Division under the general authority to administer laws that the agency is charged with enforcing. The FOM reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the Virginia Department of Labor and Industry. Further, the FOM is not used as a device for establishing interpretative policy.

The Virginia Department of Labor and Industry (DOLI) is providing the information in this manual as a public service. This information and other related materials are presented to provide public access to information regarding DOLI programs. It is important to note that there will often be a delay between the official publication of the materials and the modification of these pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town Hall remains the official resource for regulatory information published by the DOLI. Every effort will be made to address all errors brought to the attention of the Labor and Employment Law Division staff.

2.00 Prohibition of Use of Polygraphs in Certain Employment Situations

A. Coverage

The Prohibition of Use of Polygraphs in Certain Employment Situations is set forth in § 40.1-51.4:4 of the Code of Virginia and applies to all law enforcement agencies of the Commonwealth.

B. Summary

This statute prohibits law enforcement agencies from requiring their employees to submit to a lie detector test, except the chief executive officer of a law enforcement agency may by written directive require an employee to submit to a lie detector test related to a particular administrative investigation concerning allegations of misconduct or criminal activity.

C. Definitions

1. "Lie detector test" means any test utilizing a polygraph or any other device,
   mechanism or instrument which is operated, or the results of which are used or interpreted by an examiner for the purpose of purporting to assist in or enable the detection of deception, the verification of truthfulness, or the rendering of a diagnostic opinion regarding the honesty of an individual.
2. "Law-enforcement agency" means an agency which employs persons with the
   power of arrest. The Departments with this authority are the State Police, the Capitol Police, the Virginia Marine Resources Commission, the Virginia Port Authority, the Department of Alcoholic Beverage Control, the Department of Motor Vehicles, the Police Departments of political subdivisions or campus police departments of public institutions of higher learning where that force or bureau has ten or more employees, and the Internal Affairs Division of the Department Corrections.
3. "Administrative investigation" means an ongoing investigation involving
   allegations of misconduct or criminal activity such as theft, embezzlement, or misappropriation.

D. Exemption for Chief Executive Officer of the Law-enforcement Conducting Investigations of Misconduct or Criminal Activity

The chief executive officer of the law-enforcement agency may only require an employee to submit to a lie detector test if the following conditions are met:

1. The request is made in writing.
2. The test is administered in connection with an ongoing investigation involving
   misconduct or criminal activity.

For the ongoing exemption to apply, the investigation must be of a specific incident or activity. Thus, for example, the chief executive may not request that an employee or employees submit to a polygraph test in an effort to determine whether or not any thefts have occurred. Such random testing is specifically prohibited by this statute. Further, by limiting the exemption to a specific incident or activity, the chief executive is precluded from using the exemption in situations where the so-called ongoing investigation is continuous. For example, the fact that items in inventory are missing from the warehouse in a given month, this in and of itself, would not be a sufficient basis to meet the specific incident requirement without evidence of intentional wrongdoing. Administering a polygraph test in such circumstances, without identification of a specific incident or activity and a "reasonable suspicion that the employee was involved" would amount to little more than a fishing expedition.
3. The chief executive officer provides the employee with a written statement in a
language easily understood which fully explains with particularity the specific incident or activity being investigated and the basis for testing particular employees which contains at a minimum.
1. An identification with particularity of the specific misconduct or criminal
activity.
2. A statement specifically describing the employee's access to the property
that is the subject of the investigation.
3. A statement describing in detail the basis of the chief executive's
reasonable suspicion that the employee was involved in the incident or
activity under investigation.
4. The employer should maintain a copy of the statement for at least one year and
have it available for inspection on the request of DOLI.

E. Case Assignment

1. Regional, Field, or Central Office staff person receives complaint. Complaint
   must be received within 90 days of the alleged violation.
2. The claimant should be requested to write a letter documenting all
   information relevant to the alleged violation such as a copy of the written directive issued by the chief executive officer; date the polygraph was administered, if applicable; all documentation surrounding the claimant's dismissal, demotion, etc.

F. Investigation

1. Interviews complainant.
2. Interviews employer (chief executive officer).
3. Interviews all persons having knowledge of the alleged misconduct or criminal
   activity under investigation.
4. Reviews written directive of chief executive officer.
5. Reviews agency's policy for handling employee misconduct and criminal activity.
6. Upon review of all facts, findings, testimonies, etc, Representative determines the
   validity of the complaint.

G. Informal Resolution

Representative will attempt informal resolution:

1. Discuss findings and determination with employer.
2. Inform employer:
   1. To cease and desist violations detected.
   2. In the case of discharge or demotion, immediately reinstate the
      employee(s) with back pay plus applicable interest.
   3. The Commissioner may issue an order compelling reinstatement
      and back pay with applicable interest.