It's time to remove the governmental exemptions from Section 432.2 (a) of the California Labor Code, which bars private (but not public) employers from requiring employees or applicants to submit to lie detector "testing." The Problem California leads the nation in science and technology, yet many agencies in our state rely on pseudoscientific lie detector "testing" to make hiring and other employment-related decisions.
Employees of, and applicants for employment with, public safety agencies are the main population affected. Many agencies require applicants to submit to lie detector "testing." In 1999, the Los Angeles County Sheriff's Department alone conducted some
4,800 pre-employment polygraph examinations. The California Highway Patrol requires applicants submit to a competing pseudoscientific lie detection technique: Computer Voice Stress Analysis (CVSA). And the Los Angeles Police Department's Narcotics, Anti-Terrorist, and Organized Crime and Vice Divisions require officers serving in those units to "voluntarily" submit to polygraph "testing."
Yet lie detectors -- whether the polygraph or CVSA -- have not been shown by competent scientific research to operate at above chance levels of accuracy under field conditions. Lie detection is not even a standardized scientific procedure, such that it's validity might be determined through scientific research.
These pseudoscientific "tests" have no standing in the scientific community, and it is with good reason that the top-notch scientists at our national laboratories are so vociferously opposed to lie detector "testing." (
Read their comments on the Society of Professional Scientists and Engineers website.)
As readers of
The Lie Behind the Lie Detector know, polygraph "tests" actually depend on the polygrapher lying to and deceiving the person being "tested," have a built-in bias against truthful persons, and yet can be easily beaten by deceptive persons through the use of polygraph countermeasures.
Governmental reliance on pseudoscientific lie detector "testing" to judge a person's honesty and integrity is fundamentally unfair.
Current California Law Section 432.2 of the California Labor Code prohibits employers from demanding or requesting employees or applicants to submit to lie detector "testing."
But it specifically exempts government from this prohibition: Quote:432.2. (a) No employer shall demand or require any applicant for employment or prospective employment or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment. The prohibition of this section does not apply to the federal government or any agency thereof or the state government or any agency or local subdivision thereof, including, but not limited to, counties, cities and counties, cities, districts, authorities, and agencies.
(b) No employer shall request any person to take such a test, or administer such a test, without first advising the person in writing at the time the test is to be administered of the rights guaranteed by this section.
While Section 3307 of the California Government Code
does prohibit public safety officers from being
compelled to submit to a lie detector test against their will, it
does not prohibit an agency from "requesting" that a public safety officer submit:
Quote:3307. (a) No public safety officer shall be compelled to submit to a lie detector test against his or her will. No disciplinary action or other recrimination shall be taken against a public safety officer refusing to submit to a lie detector test, nor shall any comment be entered anywhere in the investigator's notes or anywhere else that the public safety officer refused to take, or did not take, a lie detector test, nor shall any testimony or evidence be admissible at a subsequent hearing, trial, or proceeding, judicial or administrative, to the effect that the public safety officer refused to take, or was subjected to, a lie detector test.
(b) For the purpose of this section, "lie detector" means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device, whether mechanical or electrical, that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.
Although no written notes about an officer's refusal to submit to a lie detector "test" may be made, any officer refusing such a request can be certain that mental notes will indeed be made, and that gossip will spread. Because of the prejudice that results from an officer refusing to submit to lie detector "testing," agencies should additionally be prohibited from even requesting that a public safety officer submit.
The Solution We need to close the loopholes in California's lie detector legislation and protect
all Californians from lie detector "testing." No one should have his or her honesty and integrity assessed based on these pseudoscientific techniques.
Minnesota's polygraph statute provides an excellent model, and we should adopt the same protections in California. The
Minnesota polygraph statute is reproduced in full below:
Quote: 181.75 Polygraph tests of employees or prospective
employees prohibited.
Subdivision 1. Prohibition, penalty. No employer or
agent thereof shall directly or indirectly solicit or require a
polygraph, voice stress analysis, or any test purporting to test
the honesty of any employee or prospective employee. No person
shall sell to or interpret for an employer or the employer's
agent a test that the person knows has been solicited or
required by an employer or agent to test the honesty of an
employee or prospective employee. An employer or agent or any
person knowingly selling, administering, or interpreting tests
in violation of this section is guilty of a misdemeanor. If an
employee requests a polygraph test any employer or agent
administering the test shall inform the employee that taking the
test is voluntary.
Subd. 2. Investigations. The department of labor
and industry shall investigate suspected violations of this
section. The department may refer any evidence available
concerning violations of this section to the county attorney of
the appropriate county, who may with or without such reference,
institute the appropriate criminal proceedings under this
section.
Subd. 3. Injunctive relief. In addition to the
penalties provided by law for violation of this section,
specifically and generally, whether or not injunctive relief is
otherwise provided by law, the courts of this state are vested
with jurisdiction to prevent and restrain violations of this
section and to require the payment of civil penalties. Whenever
it shall appear to the satisfaction of the attorney general that
this section has been or is being violated, the attorney general
shall be entitled, on behalf of the state, to sue for and have
injunctive relief in any court of competent jurisdiction against
any such violation or threatened violation without abridging
other penalties provided by law.
Subd. 4. Individual remedies. In addition to the
remedies otherwise provided by law, any person injured by a
violation of this section may bring a civil action to recover
any and all damages recoverable at law, together with costs and
disbursements, including costs of investigation and reasonable
attorney's fees, and receive other equitable relief as
determined by the court. The court may, as appropriate, enter a
consent judgment or decree without a finding of illegality.
HIST: 1973 c 667 s 1; 1976 c 256 s 1; 1986 c 444
Copyright 2000 by the Office of Revisor of Statutes, State of Minnesota.
What to Do We cannot expect the state legislature to adopt polygraph reform on its own initiative. Our legislators need to hear from us! Do you part by writing to your state Assemblymember and Senator. Look up your California legislators on-line at:
http://www.leginfo.ca.gov/yourleg.html Ask them to
sponsor a bill removing the state and local governmental exemptions to Section 432.2 (a) of the California Labor Code and to extend to all Californians the protections of the Minnesota polygraph statute. If you have been the victim of polygraph abuse, tell your state legislators about your experience. And follow up your letters with a phone call.
When you've done that, post a note about your representatives' responses here. That way, we can put those legislators who support polygraph reform in contact with each other, and hold publicly accountable those who would deny California's public employees and applicants equal protection from pseudoscientific lie detector "tests."
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Let's Stop Lie Detector "Testing" in California! (Read 19439 times)
