Sometimes young recruiters learn the talent acquisition ropes by doing, without understanding the policy behind some of the dos and don’ts of cleared recruiting. For example, you were told by the recruiting gods not to ask about marital status or if a candidate has children in an interview, but perhaps they failed to mention that that is the familial status protected class as a part of the larger anti-discrimination laws under the U.S. Equal Employment Opportunity Commission.
A counterintelligence, lifestyle, or full-scope polygraph may be required for an opening you are trying to fill, and some agencies are lax about allowing contractors to schedule time for the right candidate to obtain one. But is asking a candidate to undergo an exam violating the Employee Polygraph Protection Act (EPPA)?
EMPLOYEE POLYGRAPH PROTECTION ACT
EPPA prohibits employers from using polygraph examinations both for pre-employment screening and while an individual is employed with the organization. Per the Department of Labor, “Employers may not require any employee or applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee/applicant for refusing to take a test or for exercising other rights under the Act. Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant based on the results of a test, or for filing a complaint, or for participating in a proceeding under the Act.”
Of course, there are exemptions – just like with any other law or policy.
EPPA allows polygraph testing or examinations if there is reasonable suspicion that an employee was involved in a workplace criminal act such as theft, embezzlement, or other incident that caused economic loss to the employer. Additionally (and more applicable to cleared recruiters), the federal government is excluded from the Act altogether. Polygraphs administered at the federal level to defense contractors working in national security intelligence or counterintelligence fields are not held liable to EPPA, as well.
So, asking your cleared candidates if they would be willing to undergo a lie detector test for a potential job is not violating the law – though it would be if you were working in the private sector.
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