Okay, so I work for a state agency in AZ that falls under the 'exempt' tier of the EPPA. Recently someone pirated a movie online using my employer's internet. Right now my employer is in investigation-mode trying to find the guilty party(5 of us were working that day.) If no one fesses up, I have no doubt that they will try to administer polygraph tests for all 5 of us.
That said, can I still legally refuse to take the test even though my employer is 'exempt' from the EPPA? If so, can I be terminated by my employer solely for refusing?
Any help is VERY much appreciated!
Galan007,
Anybody can refuse to take a polygraph exam and I think most on this forum would advise you to do just that. A competent examiner would refuse to polygraph anyone who is being coerced.
As you noted, the EPPA does not apply to government agencies. Whatever sanctions your employer can apply to you would be in accordance their HR policy. If I were concerned, I'd ask them point blank.
Quote from: jisc77 on May 07, 2016, 12:50 AMOkay, so I work for a state agency in AZ that falls under the 'exempt' tier of the EPPA. Recently someone pirated a movie online using my employer's internet. Right now my employer is in investigation-mode trying to find the guilty party(5 of us were working that day.) If no one fesses up, I have no doubt that they will try to administer polygraph tests for all 5 of us.
That said, can I still legally refuse to take the test even though my employer is 'exempt' from the EPPA? If so, can I be terminated by my employer solely for refusing?
Any help is VERY much appreciated!
You can legally refuse to take the polygraph, however, your refusal may (and likely will) have adverse employment consequences, up to and including termination.
I didn't find much Arizona legislation governing the polygraph interrogation of state employees. There are, however, provisions governing the polygraphing of law enforcement officers:
http://azleg.state.az.us/ars/38/01104.htm
and probation officers:
http://azleg.state.az.us/ars/38/01134.htm
Note the requirement that any polygraph examination be audio recorded, and a copy provided to the examinee. Should it come to that, I would be happy to review the recording for you and provide you with a critique.
I disagree with Arkhangelsk's statement that "A competent examiner would refuse to polygraph anyone who is being coerced." First, it should be noted that there is no such thing as a "competent" polygraph examiner.
They are all incompetent when it comes to the detection of deception. Moreover, any polygraph operator(s) interrogating you and/or your colleagues will no doubt be state employees who will do as instructed.
If I were in your shoes I would seek the advice of a local attorney with expertise in labor law and also consult a union representative, if you have one.
Thanks for your responses.
Other than a blanket suspicion that one of us may have been involved, do they need any other more legitimate reasons/evidence before they can commence with a polygraph, or can they request us to take one based on this general suspicion?
Also, if we take the test and fail it, can we suffer any negative recourse based solely on that?
Quote from: jisc77 on May 07, 2016, 10:49 AMThanks for your responses.
Other than a blanket suspicion that one of us may have been involved, do they need any other more legitimate reasons/evidence before they can commence with a polygraph, or can they request us to take one based on this general suspicion?
Also, if we take the test and fail it, can we suffer any negative recourse based solely on that?
I don't know the answers to your first question, but with respect to the second, see the Arizona Revised Statutes, Section 38-1138 (http://www.azleg.state.az.us/ars/38/01138.htm):
Quote38-1138. Polygraph examinations
A. The results of a polygraph examination in an investigation may not be the basis for disciplinary action unless other corroborating evidence or information exists to support that disciplinary action.
B. Notwithstanding section 39-123, all data and reports from a polygraph examination of a probation officer are confidential and may be used only for employment, certification or reactivation of certification purposes or for the administrative matter for which a polygraph was administered, including other ancillary matters. All other uses are prohibited.
C. Except for a preemployment polygraph after which an applicant was not hired or in the case of an active investigation or an appeal, the data and reports from a polygraph examination of a probation officer shall be destroyed as soon as practicable three years after the date of appointment or employment but not more than ninety calendar days after that date.
See also Section 38-1108 (http://www.azleg.state.az.us/ars/38/01108.htm), which adopts similar language with respect to law enforcement officers.
Again, I suggest you seek local legal counsel. In addition, I suggest you review Chapters 1,3, and 4 of
The Lie Behind the Lie Detector (https://antipolygraph.org/lie-behind-the-lie-detector.pdf). This information will be useful in the event that you are compelled to submit to this pseudoscientific procedure.
I guess "competent" was misleading. I meant competent as in being aware of the ethics. Any examiner that would conduct a polygraph exam knowing that the examinee is being coerced into submitting either does not understand or chooses to ignore the ethics of his profession.
Quote from: Arkhangelsk on May 07, 2016, 03:20 PMI guess "competent" was misleading. I meant competent as in being aware of the ethics. Any examiner that would conduct a polygraph exam knowing that the examinee is being coerced into submitting either does not understand or chooses to ignore the ethics of his profession.
What are these ethics of the polygraph "profession" of which you speak?
From my perspective the set should include:
-Not asking questions regarding religious beliefs
-Not asking questions regarding sexual orientation
-Not asking questions which would turn one family member against another
-Refusing to examine someone who is not voluntarily submitting (signing a form is insufficient evidence)
Attached is the APA code of ethics
These are noble thoughts, but the polygraph "profession" is bound by no ethical code that enshrines them. The American Polygraph Association code you reference makes no such imposition. And in any event, the APA's "ethics" code is little more than window dressing.
Any polygraphers want to go on the record? Would you conduct a polygraph exam on someone who is being coerced into submitting?
Quote from: Arkhangelsk on May 07, 2016, 04:35 PMAny polygraphers want to go on the record? Would you conduct a polygraph exam on someone who is being coerced into submitting?
Polygraph operators have an easy out. The examinee will be coerced into signing a statement that she is submitting to the procedure "voluntarily." Is this news to anyone?
I guess that's what I originally meant as "competent." Having a signed form provides cover, but does not eliminate the coercion.
Quote from: George_Maschke on May 07, 2016, 11:34 AMQuote from: jisc77 on May 07, 2016, 10:49 AMThanks for your responses.
Other than a blanket suspicion that one of us may have been involved, do they need any other more legitimate reasons/evidence before they can commence with a polygraph, or can they request us to take one based on this general suspicion?
Also, if we take the test and fail it, can we suffer any negative recourse based solely on that?
I don't know the answers to your first question, but with respect to the second, see the Arizona Revised Statutes, Section 38-1138 (http://www.azleg.state.az.us/ars/38/01138.htm):
Quote38-1138. Polygraph examinations
A. The results of a polygraph examination in an investigation may not be the basis for disciplinary action unless other corroborating evidence or information exists to support that disciplinary action.
B. Notwithstanding section 39-123, all data and reports from a polygraph examination of a probation officer are confidential and may be used only for employment, certification or reactivation of certification purposes or for the administrative matter for which a polygraph was administered, including other ancillary matters. All other uses are prohibited.
C. Except for a preemployment polygraph after which an applicant was not hired or in the case of an active investigation or an appeal, the data and reports from a polygraph examination of a probation officer shall be destroyed as soon as practicable three years after the date of appointment or employment but not more than ninety calendar days after that date.
See also Section 38-1108 (http://www.azleg.state.az.us/ars/38/01108.htm), which adopts similar language with respect to law enforcement officers.
Again, I suggest you seek local legal counsel. In addition, I suggest you review Chapters 1,3, and 4 of The Lie Behind the Lie Detector (https://antipolygraph.org/lie-behind-the-lie-detector.pdf). This information will be useful in the event that you are compelled to submit to this pseudoscientific procedure.
Thank you.
So in my case, it might be best to take the 'test'. If I refuse to take it, I can be subject to disciplinary action... But if I take, and fail, the test secondary to nervousness or whathaveyou, they can't issue any sort of discipline anyway.
Quote from: George_Maschke on May 07, 2016, 04:16 PMThese are noble thoughts, but the polygraph "profession" is bound by no ethical code that enshrines them.
George, as a followup to this interesting thread. I happened upon the attached article from 1965 published in the Journal of Criminal Law and Criminality written by Charles L. Yeschke (http://www.legacy.com/Obituaries.asp?Page=LifeStory&PersonId=16888370) entitled "Ethics and the Polygraph Examiner." It seems that the profession had an earnest vision of ethics a half a century ago. Comparing line by line with contemporary practices demonstrates that this redeeming value was lost in the subsequent corruption.
Noteworthy is that he frowns upon anyone claiming extremely high accuracy: "Any verbal or advertised contention of perfection - No reputable examiner should manufacture such a claim, realizing in the first place that all individuals cannot be successfully examined with the polygraph, and knowing that perfection has never been achieved in any process where human beings are implicated."
He further admonishes; "Any employment of the polygraph for the sole intent of inducing confessions and thus disregarding the equally important function of the polygraph in exonerating the innocent."
Quote from: Arkhangelsk on Jul 01, 2016, 01:06 AMIt seems that the profession had an earnest vision of ethics a half a century ago.
I'm not so sure about that. There were no doubt things going on in the polygraph "profession" fifty years ago that concerned Yeschke enough that he felt the need to write this article, which was published years after John A. Larson stated: "The lie detector, in many places, is nothing more than a psychological third-degree aimed at extorting a confession as the old physical beatings were."
It's also worth noting that Yeschke taught at the Reid school, whose teachings on interrogation are all about extorting confessions.
Ethics in polygraph "testing" has always been a precious commodity.
Members of the American Polygraph Association will have an opportunity to make ethics a core professional value by supporting me for the office of APA president-elect.
My election platform is a simple triad of principles:
1. A bill of rights – similar in spirit to those found in the medical and mental health fields -- for polygraph test subjects, designed to elevate informed consent and avoid potential harms
2. Open-book research, including an ongoing countermeasure challenge series integral to APA seminars, designed to reveal polygraph's real-world accuracy and expose the wide variations in examiner competence
3. Equality for all APA members regarding access to political and educational opportunities, thereby reducing the inequities of a de facto caste society
APA electronic elections start tomorrow, July 3rd, and run through July 9th.
Quote from: danmangan on Jul 02, 2016, 10:15 AMEthics in polygraph "testing" has always been a precious commodity.
Ethics in Polygraph Testing?
Sounds like a good title for one of the world's shortest books! ;D
Quote from: xenonman on Jul 28, 2016, 06:36 PMEthics in Polygraph Testing?
Sounds like a good title for one of the world's shortest books!
It's right up there with
Ethics in Creating a Ponzi Scheme ;D
Quote from: Wandersmann on Jul 28, 2016, 11:10 PMQuote from: xenonman on Jul 28, 2016, 06:36 PMEthics in Polygraph Testing?
Sounds like a good title for one of the world's shortest books!
It's right up there with Ethics in Creating a Ponzi Scheme ;D
Or "Running the Successful Presidential Campaign" by Harold Stassen. ;)
Quote from: Arkhangelsk on May 07, 2016, 03:59 PMFrom my perspective the set should include:
-Not asking questions regarding religious beliefs
-Not asking questions regarding sexual orientation
-Not asking questions which would turn one family member against another
-Refusing to examine someone who is not voluntarily submitting (signing a form is insufficient evidence)
Attached is the APA code of ethics
Does the IC still bug applicants being polygraphed about any past "homosexual" activity? :-[