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.