Are polygraph tests on employees legal?

During interviews, potential employees do not always answer honestly about the reason for leaving their previous job or their mistakes. And there is no guarantee that an employee with an impeccable reputation will not cause losses to the company intentionally or due to negligence. Therefore, the employer performs a polygraph test as a preventive measure or to find out the truth. Below we will consider the legality of polygraph testing, the consequences of refusing testing, in which cases they are appropriate, disadvantages and additional ways to control personnel.

Why are polygraph tests necessary?

The polygraph has proven itself to be a reliable tool for assessing the reliability of information received from employees.
It is important to note that when we talk about information, we mean certain actions that the employee undergoing the polygraph performed or did not perform. With its help, you can learn about the performance of certain actions in the past, and not some desires or thoughts. Russian companies today use the polygraph for periodic checks of existing employees, upon dismissal or hiring, and sometimes for internal investigations carried out in the company.

Summary

The polygraph finds its application in various fields of activity, from commercial companies to law enforcement agencies. Today, there is no law on the polygraph in the Russian Federation as such, but the prerequisites for it are found in many legal documents, in particular in the Labor Code and a number of Federal Laws.

According to the law, the use of a polygraph is not prohibited, however, in order to use it, a number of mandatory conditions must be observed, in particular, we are talking about the written consent of the citizen, familiarization with the subject of the issues, as well as the confidentiality of the information that the person provides during the research.

Klyushnikova Renata Aug 04, 2020

Is it possible to refuse to take a polygraph test?

Of course you can.
There is nothing wrong with refusal. Refusal of a polygraph lies in the moral and ethical plane. There can be many reasons for refusal. It is important to consider how the refusal will be perceived by the initiators of such a check, and as a rule, these are managers. Reluctance to take a polygraph can only strengthen doubts. Therefore, if you have nothing to hide, then what is the point of refusing? There's nothing wrong with that. A true professional will answer all your questions related to the inspection procedure and help make it as comfortable as possible.

TYPICAL PRODUCTION PROCEDURE FOR SPFE

When ordering an examination, the investigator is advised to ask what method the expert intends to use to carry out the production of SPfE.

In recent years, SPFEs have often been carried out using the Specific Expert Methodology for conducting psychophysiological research using a polygraph 4 (hereinafter referred to as the Specific Methodology). But the overwhelming majority of investigators and experts did not know that this technique has a number of methodological and procedural errors, and the expert’s conclusions obtained with its help are procedurally unacceptable.

The authors of this article have done a lot of work 5 since 2008, explaining to specialists the erroneousness of using the Species Method in the production of SPfE, and their point of view has gained recognition over time.

In particular, the textbook “Forensic Science” published by the Investigative Committee of the Russian Federation (hereinafter referred to as the Investigative Committee of Russia) states that “the examination results obtained using the Species Methodology are of a vulnerable nature and can be easily rejected by the court. In this regard, government agencies, non-governmental organizations and polygraph examiners were recommended to refrain from producing SPFE using the Species Method until the creation of its scientifically based analogue” 6.

In 2009, the Institute of Forensic Sciences of the FSB of Russia developed and introduced a Methodology for conducting forensic psychophysiological examinations using a polygraph 7. However, this method turned out to be a purely departmental regulatory act, was not published in the scientific and methodological literature and, for the above reasons, was not widespread in production practice SPfE.

Thus, by the mid-2010s, a very contradictory situation had developed in the field of using the polygraph in the procedural order. On the one hand, the Species Method is not suitable for performing an examination; on the other hand, the need of investigative practice for the production of SPFE is steadily growing, and this need must be satisfied; and thirdly, it is impossible to carry out SPFE without a scientifically based methodology.

In an effort to create conditions for the scientifically based use of the polygraph in a procedural manner and the wider use of SPFE in investigative practice (primarily the Investigative Committee of Russia), the authors of this article have developed a Standard Methodology for conducting a forensic psychophysiological examination using a polygraph (hereinafter referred to as the Standard Methodology).

This methodology is intended to ensure the unity of expert practice, a correct understanding of the essence and production technology of SPfE, as well as to eliminate common errors and shortcomings in its implementation.

The standard methodology contains the basic theoretical, methodological and organizational provisions for the production of SPFE and is the result of a generalization of scientific and applied research and experience in using the polygraph in operational search and investigative practice, accumulated by Russian scientists and specialists since 1970. Let us dwell on some provisions of this technique.

How long does it take?

To complete all steps of the verification procedure and, as a result, obtain high-quality data that will need to be analyzed in the future, at least 2 hours per subject are required.
On average, the procedure itself takes 2-3 hours. If you are offered to take a polygraph in a much shorter period of time, for example, in half an hour or an hour, then you need to think about it. Most likely, you have met an unscrupulous specialist. The data obtained during such an audit cannot be trusted.

Checking for more than 3–4 hours is also undesirable. This is a very heavy burden both on the subject and on the polygraph examiner.

Additional methods of personnel control

Checking an employee's credit history is a quick way to control. Confidentiality, cost savings and efficiency are the advantages of this method.

The current arrears, credit load, and other loans will show the real financial situation of the applicant or employee. Such information will help the manager understand whether the employee is capable of stealing due to a poor financial situation and the degree of interest in getting the position.

Indicators characterizing the positive and negative state of an employee’s credit assessment

Does a polygraph always provide reliable information?

The polygraph is a high-precision instrument.
However, the quality of the information received depends primarily on the professionalism of the specialist performing the inspection. He must not only know his job well, but also create a favorable atmosphere. To do this, it is necessary to talk in detail about the procedure, explain what will happen and why, and provide the most detailed answers to all questions that arise.

Overall, an atmosphere of trust must be created. This will remove the negative psychological background and help obtain high-quality data. All parties involved in the audit are interested in this.

What to do if you are still forced to undergo examination

Some employers may not recognize the law and insist on their own. In this case, the actions may be as follows:

Demand that the responsible employee show where the requirements for passing polygraph tests are stated in the work schedule;
Notify your supervisor that you have a legal right not to be tested. If the requirement is nevertheless fixed in the schedule, prepare evidence of membership in non-surveyed groups;
Let the person influencing you know that if your rights are violated, you will go to court.

If a conflict does arise in the workplace, it is better to contact a lawyer as soon as possible so that he can create a full line of defense for you.

Can an ordinary worker fool a polygraph?

Theoretically, every employee can try to resist the polygraph.
You can find a large number of tips on how to deceive a polygraph in the public domain on the Internet. It should immediately be noted that most of them have neither an experimental nor a theoretical basis. However, attempts to apply such “techniques” or distort the data in any way are quickly recognized by the polygraph examiner and may indicate, among other things, that the subject intends to influence the result and, therefore, has something to hide. Unlock access to the private part of Clerk with a Premium subscription. Get hundreds of webinars and online courses, unlimited consultations and other proprietary content for accountants.

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Procedure

The polygraph testing procedure consists of several stages:

At the first stage, the employer receives the potential employee’s written consent to such a procedure (sample document here).
Then the actions preceding the main process are carried out:
special sensors are installed;
The polygraph is customized for the person being tested.
Next is the testing itself.
Test results are analyzed and brought to the attention of the test subject and the employer.

Written consent to undergo

Due to the fact that polygraph testing is not regulated at the legislative level, the applicant has the right to refuse such a procedure. If a potential employee does not wish to undergo a polygraph test, he must express his refusal in writing.

The application for refusal to undergo a polygraph test may indicate circumstances that impede testing.

Disagreement to undergo the examination procedure does not provide for any consequences for the subject. However, a refusal of employment by the employer may follow.

It is believed that such an employer’s decision can be appealed in court. In fact, rarely does anyone manage to qualify the employer’s actions as an illegal refusal to hire.

Consent is also issued in the form of a statement.

In the application for voluntary consent to conduct a polygraph test, the applicant must confirm that no methods of pressure were used against him

Introductory conversation

The conversation before the polygraph test is an important stage of testing. The effectiveness of the research depends on it.

The procedure is carried out only in the presence of a specialist called a polygraph examiner.

During the introductory conversation, the following happens:

the polygraph examiner explains the essence of the study;
establishing contact with a potential employee;
circumstances that may affect the testing procedure are clarified;
The test taker is instructed.

The briefing contains the following rules:

All questions should be answered quickly and only “yes” and “no”.
During the test, only the answers to the questions are announced by the applicant.
You must not move during the test.
Breathing should occur in a natural rhythm.
You can't close your eyes for a long time.
Legs should be relaxed.
During the test, the subject must look in front of him.
The applicant must remember that the same questions are asked several times.
If the applicant did not understand or did not hear the question, as well as if he was thinking about something extraneous, he should remain silent.
The person being tested should remember that the order of the questions may change.

Installation of sensors

As a rule, a laptop computer with a sensor unit to which sensors are connected is used to carry out the procedure.

The unit registers parameters and converts signals into digital codes, which are then entered into the computer.

Next, the sensors are attached to the test subject:

Electrical conductivity sensors and a pulse rate meter are installed on the fingers (only on one finger);
on the chest and stomach - breathing sensors.

Setting up the device for a specific person

First, the applicant for a position is asked questions with obviously obvious answers to identify the physiological reaction to truth and lies. In this way, the polygraph is calibrated for the person being tested.

Typically the following questions are asked:

full name of the applicant;
date and place of his birth;
names of family members;
previous place of work, etc.

After setting up the device for the test subject, the main testing begins.

Examples of questions for polygraph testing

The questionnaire is compiled individually and depends on the specific position.

Rules for asking questions during a polygraph test:

questions should exclude double interpretation;
all words must be understandable to the test taker;
the keywords are at the end (“Did you steal money from the safe?”);
the phrase should be short.

Typically the test contains no more than twenty questions.

Let's look at common questions:

information included in the resume;
information provided by the applicant about himself;
history of theft;
contacts with competing companies;
presence of bad habits;
having a criminal record;
presence of debts to credit institutions;
compliance of the applicant’s skills with the position;
level of interest in work;
negative intentions regarding the organization, etc.

The testing procedure lasts from 40 to 120 minutes.

Test results

Within three days after the polygraph test, a polygraph examiner contacts the subject and makes an appointment to announce the results to him. The result of passing the test is a written conclusion and a polygraph record, i.e. a polygram.

A polygram is a graphic display of the results of a polygraph test

A sample conclusion looks like this.

The conclusion about passing a polygraph test describes in detail the entire examination process.

The results of the inspection are prohibited from being disclosed to third parties.